MSP Terms and Conditions

About this Document

This document outlines the terms and conditions on which AVATAR Computing, Inc. provides managed IT support services to clients. These are known as our Managed Services Standard Terms and Conditions.

Background

A. AVATAR Computing, Inc. is in the business of providing Information Technology (IT) service and technical support.
B. The operations of the Client involve the use of an IT network, which requires ongoing service and support.
C. The Parties have agreed to enter into the Agreement whereby AVATAR Computing, Inc. will provide IT service and support to the Client on the terms and conditions hereinafter provided in the agreement.

Contract

1. DEFINITIONS AND INTERPRETATION


1.1. In these terms and conditions:
“Additional Charge” means a charge levied to you account in relation to the supply of a service or product or goods of and incidental to the Agreement that is not included in the Agreement that is deemed by AVATAR Computing Inc. to  be  reasonably  necessary  to  give  effect  to  the  performance  of  the  Term  of  the  Agreement.      
“Agreement” means  the  Managed  Services  Agreement.      
“Business Day” means  a  day  in  the  State  of  Massachusetts  that  is  not  a  Saturday,  a  Sunday  or  a  public  holiday.      
“Client” means the  party  that  has  entered  into  the  agreement  with  AVATAR  Computing,  Inc.        
“Commencement Date” means the date for the commencement of the services as specified in the Agreement.
“Confidential Information” means:
I. all pricing information, business and financial information, sales and supply details, marketing strategies, customer and supplier listings, staff information, business listings, information concerning the business or customers relating to the Client or the Services;
II. all processes, procedures, techniques, concepts, systems, manuals, license agreements, disclosure documents, documents, agreements, contracts, notes, file and data base structures and software relating to the Services;
III. any information which, by its nature, places or potentially places the Client at an advantage or disadvantage over its present or future business competitors or clients;
IV. any information that would otherwise at law be considered secret or confidential information; whether or not marked “Confidential” BUT does not include information which:
a. at the time of first disclosure by a party is or is reasonably known to be or to have been a part of the public domain;
b. after disclosure by a party is or becomes part of the public domain otherwise than by disclosure in breach of the terms of the Agreement;
c. was in the possession, knowledge, custody, power or control of AVATAR Computing, Inc. prior to disclosure.
V. Any information relating to the Client, its members, customers, contributors or suppliers.
“Contract” means the Agreement and may be used interchangeably herein.
“Due Date” means the date payment is due and payable by the Client to AVATAR Computing, Inc. for the supply of the Services or other matters or things of and incidental to the Agreement.
“Emergency” means anything that is considered to be of an extreme or catastrophic nature touching or impinging upon human life, property, goods, anything material or intangible deemed necessary to give effect to the Agreement.
“Fees” means the Time and Materials hourly rate or those costs identified in the Managed IT Services proposal comprising the Agreement and may be used interchangeably to the extent applicable.
“Initial Term” means the committed period of engagement by the Client of AVATAR Computing, Inc. starting on the Commencement date.
“Out of Scope” means services provided that do not form a part of the Support Hours or Fees schedule or base costing of the Agreement to any extent applicable.
“Parties” means the parties to the Agreement, namely the Client and AVATAR Computing, Inc. and may be used interchangeably in the Agreement or herein.
“Response Time” means the maximum delay prior to AVATAR Computing, Inc. responding to a request for Services of and incidental to the Agreement.
“Services” means those services described in the Agreement.
“Subsequent term” means the period of time the Client engages AVATAR Computing, Inc. following the conclusion of the Initial Term.
“Term” means the Initial Term and any Subsequent Term as set out in the Agreement.
“We” or “Us” or “Our” means AVATAR Computing, Inc. and may be used interchangeably in the Agreement or herein.
“You” or “Your” or “It” means the Client and may be used interchangeably in the Agreement or herein.

2. DURATION


2.1. The Agreement continues for a term of (12) months unless otherwise stipulated or terminated in accordance with the terms and conditions herein.

2.2. Following expiration of the Initial Term the Agreement will automatically renew for subsequent periods equal to the length of the Initial Term of the Agreement (each a Subsequent Term) unless you notify AVATAR Computing, Inc. in writing at least 30 days prior to the expiration of the Initial Term or, where relevant, a Subsequent Term, of your intention to allow the Agreement to expire.

3. ACKNOWLEDGMENTS AND NOTICE


3.1. AVATAR Computing, Inc. acknowledges:
A. the Client enters into the Agreement and receives the benefit of the Services on behalf of itself;
B. that, if not for the Client entering into the Agreement, the Client would not have allowed AVATAR Computing, Inc. to provide the Managed Services to it;
C. the confidentiality obligations hereby created shall not merge or be released upon cessation of any
discussions between the Parties but will continue thereafter;

3.2. AVATAR Computing, Inc. hereby notifies the Client that these terms and conditions take effect from signing of the Managed Services contract; and
.

4. CONFIDENTIALITY OBLIGATIONS


4.1. AVATAR Computing, Inc. must not use the Confidential Information other than for the purpose of fulfilling the requirements of and to give effect to the performance of the Agreement.

4.2. AVATAR Computing, Inc. must maintain strict confidentiality in relation to the Confidential Information and must not divulge all or any aspect of the Confidential Information to any person not in its employ or engagement in relation to fulfilling its obligations under the Agreement.

4.3. If AVATAR Computing, Inc. wishes to disclose any of the Confidential Information to its accountant, business, financial or legal adviser (“Professional Advisors”), it may do so upon advising the Client and obtaining written consent of the Client that shall not be unreasonably withheld.

4.4. If AVATAR Computing, Inc. is uncertain whether any information comprises part of the Confidential Information then it may seek direction from the Client before divulging the information to any third party.

4.5. AVATAR Computing, Inc. must not grant or permit any person to have access to or possession of the Confidential Information unless authorized by the client.

4.6. The obligations on the Parties under this clause 4 shall not be taken to have been breached to the extent that the Confidential Information:
A. is disclosed by AVATAR Computing, Inc. to its Professional Advisers, officers, employees, agents or subcontractors solely and to the extent necessary in order to comply with obligations or to exercise rights under the Agreement;
B. is disclosed by AVATAR Computing, Inc. to its internal management personnel, solely to enable effective management or auditing of related activities of and incidental to fulfilling its obligation to the Client under the Agreement;
C. is authorized or required by law or by order of any regulatory authority, stock exchange, judicial or
parliamentary body or governmental agency to be disclosed.

4.7. Where AVATAR Computing, Inc. discloses Confidential Information to another person pursuant to sub-­‐paragraphs

4.6(a) and 4.6(b), AVATAR Computing, Inc. must:
A. notify the receiving person that the information is Confidential Information; and
B. not provide the information unless the receiving person agrees in writing to keep the information
confidential.

4.8. If AVATAR Computing, Inc. is required to make a disclosure as described in sub-­‐paragraph 4.6(c) AVATAR Computing, Inc. will disclose only the Confidential Information required to comply with the applicable law or order.

4.9. Notwithstanding this clause 4, the Client is not entitled to restrict the use by AVATAR Computing, Inc. of any Intellectual Property in material which vests in the Client by claiming that the Intellectual Property is Confidential Information which would restrict the delivery of the Managed Service or impinge or unduly impact upon the Service Levels provided.

4.10. The Client agrees that it will:
A. treat as confidential information and keep secret during the term of this Agreement and for three full years after the termination of it all information relating to the business practices or clientele of AVATAR Computing, Inc. that is disclosed to it in confidence unless AVATAR Computing, Inc. gives its prior written consent to such disclosure unless such disclosure is required by law or relevant regulatory body; and
B. not reproduce in whole or in part any report prepared by AVATAR Computing, Inc. for use by any other
party without AVATAR Computing, Inc’s prior written approval.

4.11. AVATAR Computing, Inc’s obligations of confidentiality shall not merge or be released upon the expiration or termination of the Agreement, and will continue thereafter.

5. IT SERVICE AND SUPPORT


5.1. AVATAR Computing, Inc. must provide the Services to the Client within set forth on the Scope of Work (Exhibit A) and developed jointly by Client and AVATAR Computing, Inc.. The parties shall work together in a joint effort to accomplish the tasks and objectives set forth listed within the Scope of Work. AVATAR Computing, Inc. shall be responsible for delivering and performing only those professional services specifically identified in the Scope of Work. Any modifications to the Scope of Work shall be pursuant to an Additional Charge.

5.2. The method of delivering the Services will be determined at the discretion of AVATAR Computing, Inc. and can be delivered via telephone, remotely or by onsite attendance. AVATAR Computing, Inc. must act reasonably in exercising such discretion.

5.3. AVATAR Computing, Inc. must provide and carry out the Service in an efficient and professional manner and in accordance with standards generally observed in the IT industry or profession for similar services.
5.4. The Client shall:
A. provide all reasonable assistance requested by the personnel of AVATAR Computing, Inc. in the diagnosis of any problem within the IT infrastructure and follow any reasonable direction of AVATAR Computing, Inc. in the course of doing so;
B. make available and within a reasonable time all information, facilities and services reasonably required to enable AVATAR Computing, Inc. to provide the Services;
C. provide reasonable access to its premises thereby granting a non-­‐exclusive license to AVATAR Computing, Inc. to give effect to the matters described in sub-­‐clauses

5.5. AVATAR Computing, Inc. will use best endeavors to supply the Services without warranting that supply will be interruption or error free. Despite anything else within the Agreement the Client acknowledges and accepts that the Services may not be available in all circumstances. The Client hereby agrees waive any claims against AVATAR Computing, Inc. for damages arising in contract and or tort (including negligence) for default or failure to perform our obligations under the Agreement to the extent resulting from circumstances reasonably beyond its control including, but not limited to, weather conditions, power failure, telecommunications failure, technical failure, maintenance requirements, our inability to access your premises, your acts or omissions or those of any third parties. AVATAR Computing, Inc. shall rely upon this clause 5.5 to the full extent permitted by law and to the extent of any inconsistency between this clause 5.5 and clause 9 herein, clause 9 shall prevail to the extent of such inconsistency.

5.6. Where a serious issue or potential issue or problem matter arises relating to the age, configuration or implementation of any supported equipment that has been identified and brought to the attention of the Client by AVATAR Computing, Inc. in writing and in the opinion of AVATAR Computing, Inc. that said equipment is requiring additional support or support beyond the scope of the obligations of AVATAR Computing, Inc. under the Agreement due to its age, configuration or implementation, AVATAR Computing, Inc. reserves the right in its sole discretion to cease support of that item of equipment under the Managed Services Agreement or provide support on the time and material basis within the scope of the Agreement until such times as the said equipment is brought up to a standard in the opinion of AVATAR Computing, Inc. is acceptable to agreed Generally Accepted IT Standards. AVATAR Computing, Inc. will work with the Client to proactively identify appropriate replacement solution options and to assist the Client to procure such solution. The Client hereby expressly agrees to indemnify, release and hold harmless and blameless AVATAR Computing, Inc. for any consequential, economic, business or opportunity, direct or indirect loss or damage or harm of any type whatsoever (including negligence and in contract or tort) arising out of or incidental to any interruption to service, support or maintenance of the Clients operating network howsoever arising by AVATAR Computing, Inc. having ceased support of the said equipment. AVATAR Computing, Inc. shall rely upon this clause 5.6 to the full extent permitted by law and to the extent of any inconsistency between this clause 5.6 and clause 9 herein, clause 9 shall prevail to the extent of such inconsistency.

5.6.1. To any extent necessary, clause 5.5 and 5.6 hereof may be read together to interpret the application or operation of them individually or collectively in part or in whole and in the event there is found to be any inconsistency between the clauses such inconsistency shall be severed without affecting the remaining provision that shall be enforced and interpreted as if the severed provision had never existed.

5.7. Unless specified in the Agreement all other services and or requirements that the Client may require in connection with or of and incidental to its IT infrastructure other than the services listed in the Agreement will be deemed not to be covered by the Agreement and if provided by AVATAR Computing, Inc. shall be charged in accordance with the time and materials “Out of Scope” hourly rate included in the Agreement. This includes but is not limited to:
A. Support time requested either off-­‐hours or in excess of the allotted monthly support time of (4) hours;
B. Installation of new or additional devices or provision of service which is not specifically mentioned in the Agreement or covered by its scope; and
C. The relocation of equipment in the event you move location.

6. SERVICE FEE


6.1. The Fees for the Services as detailed in the Agreement will be invoiced monthly and shall be due and payable within 30 days of the date of the Invoice supplied (Due Date).

6.2. If you in good faith dispute an amount in an invoice, you must notify us in writing within 7 days of the date of invoice setting out reasons for the dispute and the amount in dispute (Disputed Amount). We will within 7 days of the date of receipt of your notice in writing in good faith review the invoice for the purposes of resolving such dispute. In the event a Fee is disputed, you are not entitled to withhold payment of the undisputed amount of the invoice.

6.3. Additional costs to be billed in excess of the managed IT services contract monthly amount for such things as procured equipment, emergency service response calls and support calls made above the allotted support hours per month, will be billed separately, as incurred, and payable within 30 days.

7. SUSPENSION OR TERMINATION


7.1 The managed IT Services contract may be terminated by you, in whole or in part, at any time for any reason whatsoever by giving not less than (30) days written notice to AVATAR. If this contract is so terminated, you will pay AVATAR only for that portion of the services actually performed and for documented expenses incurred by us and authorized by you prior to the date of termination. AVATAR will work with you in a professional manner to ensure a smooth transition in service and provide to you any and all applicable passwords.

7.2. Termination of the Services in accordance with the Agreement does not affect the application of the provisions of these terms and conditions relating to limitation of liability or indemnity.

8. YOUR RESPONSIBILITIES


8.1. You must:
A. comply promptly with our reasonable directions in relation to the provision of the Services in the Agreement;
B. provide promptly all information, decisions, facilities and assistance we reasonably require to supply the Services;
C. comply with all laws and guidelines concerning your use of the Services; and
D. provide us safe access to the premises to which the Services are supplied and obtain the consent of the owner (where required) for us to install, inspect, repair, maintain or remove equipment connected with the provision of the Services.
E. notify AVATAR Computing, Inc. of your inability to comply with our reasonable requests in line with points A, B, C & D outlining why you cannot comply and providing alternate options so that AVATAR Computing, Inc. may continue to meet its obligations under the contract.

8.2. Unless otherwise permitted under the Agreement, you must not use or permit any other person to use any of the Services for any unauthorized purpose.

9. LIMITATION AND EXCLUSION OF LIABILITY


9.1. AVATAR Computing, Inc. shall not be liable to the Client for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the agreement, except to the extent that such liability is covered by AVATAR Computing, Inc. For the avoidance of doubt this extends to any employees, contractors, agents, representatives, licensees or permitted assigns of AVATAR Computing, Inc.

9.2. To the fullest extent permitted by law, we exclude all warranties implied by law except as expressly set out in the Agreement.

9.3. Any unreasonable and material interference by the Client or its agents, employees, sub-­‐contractors or other third party with the consent of the Client with equipment, network or configuration relevant to or of and incidental to the Agreement will void any guaranteed response time or quality of service commitments, remove any liability to the Client for the quality of the Service the subject of such interference and may also incur fees to cover costs of rectification as the rectification will be considered as an excluded item of the Agreement.

10. NOTICE PROVISIONS


10.1. Any notice, consent or other communications given or made to a party under the Agreement must be in writing and delivered or sent by email, pre-­‐paid ordinary post or facsimile transmission to the address or facsimile number of the party as last or reasonably known to either party or to such other address or facsimile number as the party may from time to time notify for the purpose of this clause.

10.2. Proof of posting by pre-­‐paid or ordinary post shall be deemed receipt within 2 Business Days after posting.

10.3. Proof of dispatch by facsimile is proof of receipt upon production of a facsimile report by the machine from which the facsimile is sent except where the sender machine indicates a malfunction in transmission or the recipient immediately notifies the sender of an incomplete transmission, in which case the transmission shall be deemed not to have been given or served.

10.4. Proof of delivery by email is proof of receipt upon production of a delivery confirmation report appearing on the sender’s computer except where the sender’s computer indicates delivery has not been affected in which case delivery shall be deemed not to have been effected.

11. ASSIGNMENT AND SUBCONTRACTING


11.1. You must not assign or otherwise transfer your rights or obligations under the Agreement without the prior written consent of AVATAR Computing, Inc., which shall not be unreasonably withheld. For the avoidance of doubt, a change in the control of a party is a deemed assignment.

11.2. We may subcontract our Service obligations under the Agreement, only with your written consent, and provided that by subcontracting we are:
A. not relieved from any of our obligations under the Agreement; and
B. liable for any breach of the Agreement committed, caused or contributed to by our subcontractors.

12. MISCELLANEOUS


12.1. (Waiver) The waiver by either party of any breach of the Agreement shall not license the other party to repeat or continue any such breach nor operate as a waiver of any subsequent breach whether of the nature or not. The failure of either party to exercise any right which it may have in the event of a breach of the Agreement shall not be deemed to be an abandonment or waiver of any right for damages injunction or otherwise.

12.2. (Entire Agreement) The terms and conditions herein and the Agreement set forth the entire Agreement and understanding for provision of Managed Services between the parties and merges all prior discussion between them and none shall be bound by any conditions, warranties or representations with respect to the subject of the Agreement other than as expressly provided therein or any instrument subsequent to the Commencement Date of the Agreement in writing and signed by the party to be bound thereby.

12.3. (Force Majeure) The non-­‐performance or delay in performance by a party of any obligation under the Agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses its best endeavors to perform as soon as possible its obligations under the Agreement (including by the use of reasonable workarounds and interim measures). If a Force Majeure Event continues for more than 30 days, either party may terminate the Agreement immediately by notice in writing to the other party.

12.4. (Governing Law) The Agreement shall be deemed to have been made in the State of Massachusetts and construction, validity and performance of the Agreement shall be governed by the laws (as amended) of that State. The parties unconditionally submit to the jurisdiction of the Courts of that State or any superior Court of the Commonwealth having relevant jurisdiction.

12.5. (Reading down and severance) Each clause of the Agreement and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of the agreement must be interpreted as if the severed provision had never existed.

12.6. (Non merger) All obligations of the parties which expressly or by their nature survive the expiration or termination of the Agreement shall continue in full force and effect notwithstanding such expiration or termination.

12.7. (Non solicitation) You must not solicit or attempt directly or indirectly to solicit any of our employees, either directly as an employee, as a contractor or as a subcontractor for employment or separate engagement as a contractor during the term of the Agreement and for 24 months after the date of expiration of the Agreement.