Master Services Agreement | Pella Technology

Pella Technology Services, Inc.
Master Services Agreement

Thank you for trusting Pella Technology Services, Inc., (“Pella Technology Services, Inc.,” “we,” “us,” or “our”) to provide you with professional information technology services. This Master Services Agreement (this “Agreement”) governs our business relationship with you, so please read this document carefully and keep a copy for your records.

SCOPE

a) Context. Throughout this Agreement, references to “Client,” “you,” or “your” mean the entity who has accepted a quote, proposal, service order, or similar document (electronic or otherwise) from Pella Technology Services, Inc. (In this Agreement we refer collectively to these type of documents as a “Proposal,” although the actual title(s) or caption(s) of the service-related document might vary.)
b) Scope of Services. This is a “master” agreement and, as such, specific services are not listed in this Agreement. Instead, any services to be provided to you or facilitated for you (as applicable) will be described in a Proposal (collectively, “Services”). The scope of our engagement with you is limited to those services expressly listed in a Proposal; all other services, projects, and related matters are out-of-scope and will not be provided to you unless we expressly agree to do so in writing (collectively, “Out of Scope Services”). In addition to a Proposal, the Services are also defined, clarified, and governed under an additional document that we will refer to in this Agreement as a “Services Guide.” Our Services Guide is akin to a “user manual” that provides important and binding details about the Services, for example, (i) how the Services are provided/delivered, (ii) service levels applicable to the Services, (iii) additional payment terms/obligations, and (iv) auto-renewal terms for the Services. Please read both the Proposal and the Services Guide before accepting the Proposal. If you have any questions about either of those documents or this Agreement, please do not sign the Proposal and, instead, contact us for more information.
c) Version. Each Proposal will be governed under the version of this Agreement that is in place as of the “last updated” date indicated at the bottom of this document. For that reason, you should keep a copy of this document and make a note of the date indicated below when you accept a Proposal.
d) Conflicts. The provisions of a Proposal govern over conflicting or different terms contained in this Agreement and the Services Guide—this allows us to craft solutions to meet your needs by making applicable changes in the Proposal. Conflicting language between the Services Guide and this Agreement will be interpreted in favor of the Services Guide.
e) Third Party Providers/Services. Some services may be provided to you directly by our personnel, such as situations in which our personnel install software agents on managed devices or physically install equipment at your premises. These services are distinguishable from services that are provided to you or us by third party providers, who are often referred to in the industry as “upstream providers.” (In this Agreement, we refer to upstream providers as “Third Party Providers” and the services that are provided by Third Party Providers are referred to as “Third Party Services”). By way of example, Third Party Services may include help desk services, malware detection and remediation services, firewall and endpoint security-related services, backup and disaster recovery solutions, and the provision of software used to monitor the managed part of your network, among others.
Selection. As your managed information technology provider, we will select the Third Party Providers that provide services appropriate for your managed information technology environment (the “Environment”) and facilitate the provision of Third Party Services to you. Not all Third Party Services will be expressly identified as being provided by a Third Party Provider, and we reserve the right to change Third Party Providers in our sole discretion as long as the change does not materially diminish the Services that we are obligated to provide to you under a Proposal.
Reseller. We are resellers of the Third Party Services and do not provide those services to you directly. For this reason, we are not and cannot be responsible for any defect, omission, or failure of any Third Party Service, or any failure of any Third Party Provider to provide its services to you or to us. Third Party Services are provided on an “as is” basis only. If an issue requiring remediation arises with a Third Party Service, then we will endeavor to provide a reasonable workaround or, if available, a “temporary fix” for the situation; however, we do not warrant or guarantee that any particular workaround or fix will be available or achieve any particular result, or that Third Party Services will run in an uninterrupted or error-free manner.

iii. Price Increases. We reserve the right to pass through to you any increases in the costs and/or fees charged by Third Party Providers for the Third Party Services (“Pass Through Increases”). Since we do not control Third Party Providers, we cannot predict whether such price increases will occur, however, should they occur, we will endeavor to provide you with as much advance notice as reasonably possible.

IMPLEMENTATION

Advice; Instructions. From time to time, we may provide you with specific advice and directions related to the Services (“Advice”). For example, our Advice may include increasing server or hard drive capacity, increasing CPU power, replacing obsolete equipment, or requesting that you refrain from engaging in acts that disrupt the Environment or that make the Environment less secure. You are strongly advised to promptly follow our advice which, depending on the situation, may require you to make additional purchases or investments in the Environment at your sole cost. We are not responsible for any problems or issues (such as downtime or security-related issues) caused by your failure to promptly follow our Advice. If, in our reasonable discretion, your failure to follow our Advice makes part or all of the Services economically or technically unreasonable or impracticable to provide, then we may terminate the applicable Services For Cause (explained below) by providing notice of termination to you or, alternatively, we may adjust the scope of the Proposal to exclude any impacted or affected portion of the Environment. Unless specifically and expressly stated in writing by us (such as in a Proposal), any services required to remediate issues caused by your failure to follow our Advice, or your unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements (defined below), are out-of-scope.
Co-Management. In co-managed situations (e.g., where you have designated other vendors or personnel, or “Co-Managed Providers,” to provide you with services that overlap or conflict with the Services provided by us), we will endeavor to implement the Services in an efficient and effective manner; however, (a) we will not be responsible for the acts or omissions of Co-Managed Providers, or the remediation of any problems, errors, or downtime associated with those acts or omissions, and (b) in the event that a Co-Managed Provider’s determination on an issue differs from our position on a Service-related matter, we will yield to the Co-Managed Provider’s determination and bring that situation to your attention.
Prioritization. All Services will be implemented and/or facilitated (as applicable) on a schedule, and in a prioritized manner, as we determine reasonable and necessary. Exact commencement / start dates may vary or deviate from the dates we state to you depending on the Services being provided and the extent to which prerequisites (if any), such as transition or onboarding activities, must be completed.

iii. Modifications. To avoid a delay or negative impact on the Services, we strongly recommend that you refrain from modifying or moving the Environment, or installing software in the Environment, unless we expressly authorize such activity. In all situations (including those in which we are co-managing an Environment with your as described above), we will not be responsible for changes to the Environment that are not authorized by us or any issues or errors that arise from those changes.

b) Third Party Support. If, in our discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs involved in that process (“OEM Fees”). If OEM Fees are anticipated in advance, we will endeavor to obtain your permission before incurring such expenses on your behalf unless exigent circumstances require us to act otherwise. We do not warrant or guarantee that the payment of OEM Fees will resolve any particular problem or issue, it being understood that the resolution process can sometimes require the payment of OEM Fees in order to narrow (or potentially eliminate) potential issues.
c) Authorized Contact(s). We will be entitled to rely on any directions or consent provided by your personnel or representatives who you designate to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable Proposal or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the Proposal, and/or (ii) who is generally designated by you during our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of a change of status of the Authorized Contact. If your change is provided to us in writing (physical document or by email), then the change will be implemented within two (2) business days after the first business day on which we receive your change notice. If your change notice is provided to us in person or by telephone (live calls only), the change will be implemented on the same business day in which the conversation takes place. Do not use a ticketing system or help desk request to notify us about the change of an Authorized Contact; similarly, do not leave a recorded message for us informing us of a change to your Authorized Contact. We reserve the right but not the obligation to delay the Services until we can confirm the Authorized Contact’s authority within your organization.
d) Access. You hereby grant to us and our designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us or those providers, as applicable, to provide the Services. Depending on the Service, we may be required to install one or more software agents into the Environment through which such access may be enabled. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for Pella Technology Services, Inc. or applicable Third Party Providers to provide the Services to you. Proper and safe environmental conditions must be always provided and assured by you. Pella Technology Services, Inc. shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.
e) Ongoing Requirements. Everything in the managed environment must be genuine and licensed including all hardware, software, and operating systems, etc. If we ask for proof of authenticity and/or licensing, you must provide us with such proof. If we require certain minimum hardware or software requirements (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements as an ongoing requirement of us providing the Services to you.
f) Response. Our response to issues relating to the Services will be handled in accordance with the provisions of the Proposal or, if applicable, Services Guide. In no event will we be responsible for delays in our response or our provision of Services during (i) those periods of time covered under the Transition Exception (defined below), or (ii) periods of delay caused by Scheduled Down Time, Client-Side Downtime, Vendor-Side Downtime (all defined below). or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a force majeure event.
Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by us but which will not occur between the hours of 8:00 AM and 4:30 PM Central Time, Monday through Friday without your authorization or unless exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to the Environment. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
Client-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions (“Client-Side Downtime”). Client-Side Downtime includes, but is not limited to, any period of time during which we require your participation, or we require information, directions, or authorization from you but cannot reach your Authorized Contact(s).

iii. Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third party service providers, third party licensors, or “upstream” service or product vendors.

Transition Exception. You acknowledge and agree that for the first forty-five (45) days following the commencement date of any Service, as well as any period of time during which we are performing off-boarding-related services (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), the response time commitments provided to you will not apply to us, it being understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

FEES; PAYMENT

a) Fees. You agree to pay the fees, costs, and expenses charged by us for the Services as described in each Proposal and Services Guide. You are responsible for sales tax and any other taxes or governmental fees associated with the Services. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption. You are also responsible for all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes).
b) Schedule. Unless otherwise indicated in a Proposal, fees are payable in advance of the provision of the applicable Services. Generally, all fees anticipate automatic monthly recurring payment by you, and payments by any other methods may result in increased fees or costs.
c) Nonpayment. Fees that remain unpaid for more than fifteen (15) days when due will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely paid. Monthly or recurring charges (if applicable) will continue to accrue during any period of suspension. Notice of disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on which you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. We reserve the right to charge a reasonable reconnect fee (of no more than 10% of your monthly recurring fees) if we suspend the Services due to your nonpayment.
d) Increases. Fee increases, such as increases in our monthly recurring fees or service rates, will be handled in the manner described in the Proposal and Services Guide. Please read those documents carefully so that you understand how, and when, such increases may occur. Please note: Limits on fee increases, if described in the Proposal or Services Guide, will not apply to Pass Through Increases (described above) which will be excluded when calculating fee increases.
e) Expenses. Any costs or expenses that we incur while providing the Services during a national, state, or local emergency or during a period in which there are fuel, manpower, or other national or local shortages (“State of Emergency”) will be invoiced and payable by you. By way of example, such expenses may include incremental increases in the cost of gasoline or electrical power, or the purchase of health or safety equipment reasonably necessary to provide the Services to you.

LIMITED WARRANTIES; LIMITATIONS OF LIABILITY

a) Hardware / Software Purchases.

Payment terms will be determined based on credit application and all hardware and software purchases over $500 require payment in full before product is ordered. All equipment, machines, hardware, software, peripherals, or accessories purchased through Pella Technology Services, Inc. (“Third Party Products”) are generally nonrefundable once the item is obtained from Pella Technology Services, Inc.’s third party provider or reseller. If you desire to return a Third Party Product, then the third party provider’s or reseller’s return policies will apply. We do not guarantee that Third Party Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided, and you agree to be responsible for paying all re-stocking or return-related fees charged by the third party provider or reseller. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality, or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. All Third Party Products are provided “as is” and without any warranty whatsoever as between Pella Technology Services, Inc. and you (including but not limited to implied warranties).

b) Liability Limitations. This paragraph limits the liabilities arising from the Services and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that Pella Technology Services, Inc. would not provide any Services, or enter into any Proposal or this Agreement, unless Pella Technology Services, Inc. could rely on the limitations described in this paragraph. In no event will either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to Pella Technology Services, Inc.), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services, this Agreement, any Proposal, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Proposal, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation. Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to Pella Technology Services, Inc. for the specific Service upon which the applicable claim(s) is/are based during the three (3) month period immediately prior to the date on which the cause of action accrued or $10,000, whichever is greater. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose; however, the limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, gross negligence, or to the extent that the Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims. Under no circumstances shall Pella Technology Services, Inc. have any liability for any claims or causes of action arising from or related to Out of Scope Services.
c) Waiver of Liability for Admin/Root Access. We strongly suggest that you refrain from providing administrative (or “root)” access to the Environment to any party other than Pella Technology Services, Inc., as such access by any person other than an Pella Technology Services, Inc. employee could make the Environment susceptible to serious security and operational issues caused by, among other things, human error, hardware/software incompatibility, malware/virus attacks, and related occurrences. If you request or require us to provide any non-Pella Technology Services, Inc. personnel (i.e., non-Pella Technology Services, Inc. employees, such as in a co-managed situation) with administrative or “root” access to any portion of the Environment, then you hereby agree to indemnify and hold us harmless from and against any and all Environment-related issues, downtime, exploitations, and/or vulnerabilities, as well as any damages, expenses, costs, fees, charges, occurrences, obligations, claims, and causes of action (collectively “Claims”) arising from or related to any activities that occur, may occur, or were likely to have occurred in or through the Environment at an administrative or root level, as well as any issues, downtime, exploitations, vulnerabilities, or Claims that can reasonably be traced back or connected to activities occurring at the administrative or root level (“Activities”) in the Environment provided, of course, that such Activities were not performed or authorized in writing by Pella Technology Services, Inc.. Pella Technology Services, Inc.’s business records shall be final and determinative proof of whether any Activities were performed or authorized in writing by Pella Technology Services, Inc.

INDEMNIFICATION

Each party (an “Indemnifying Party”) agrees to indemnify, defend, and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

TERM; TERMINATION

There are several dates of which you should be aware, including the effective/termination dates of this Agreement and the effective/termination dates of the Services under a Proposal. Each Proposal will have its own term and will be terminated only as provided in this Agreement or as provided in the Proposal or Services Guide.

a) This Agreement. This Agreement applies to all Services and is effective as of the date on which we provide a Service to you or on the date on which you accept a Proposal, whichever is earlier (“Effective Date”). This Agreement will terminate automatically (i) if you or we terminate this Agreement For Cause (described below), or (ii) six (6) months after the last date on which we provide any Service to you. Upon the termination of this Agreement, all Services will immediately and permanently cease; however, the termination of this Agreement shall not change or eliminate any fees that accrued and/or were payable to us prior to the date of termination, all of which shall be paid by you. Please note, this Agreement shall not be terminated by either party without cause if Services are in progress under a Proposal.
d) Minimum Contract Term. This Agreement shall have a minimum initial term of one (1) year commencing on the Effective Date. During this period, neither party may terminate the Agreement without cause. Upon completion of the initial one-year term, this Agreement shall automatically convert to a month-to-month arrangement unless otherwise agreed in writing by both parties. Either party may terminate the Agreement after the initial term by providing ninety (90) days’ prior written notice. Notice must be delivered via certified mail or electronic communication with confirmation of receipt.
c) Termination Without Cause. Unless otherwise indicated in the Proposal or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, Services are in progress. In addition, no party will terminate a Proposal without cause prior to the Proposal’s natural (i.e., specified) expiration or termination date. (By way of example: If a Proposal provides for an annual service, then the Services under that Proposal cannot be terminated without cause prior to the expiration of one year). If you terminate the Services under a Proposal without cause and without Pella Technology Services, Inc.’s consent, then you agree to be responsible for paying the termination fee described in the “Termination for Cause” section, below.
a) Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a Proposal, Services Guide, or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately the Services under the relevant Proposal (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party.
i) Remedies for Early Termination. If Pella Technology Services, Inc. terminates this Agreement or any Proposal For Cause, or if you terminate any Services under a Proposal without cause prior to such Proposal’s expiration date, then Pella Technology Services, Inc. shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to Pella Technology Services, Inc. had this Agreement or Proposal (as applicable) remained in full effect, calculated using the fees and costs in effect as of the date of termination (“Termination Fee”). If you terminate this Agreement or a Proposal For Cause, then you will be responsible for paying only for those Services that were delivered properly and accepted by you up to the effective date of termination, and nothing more.
ii) Service Tickets. Given the vast number of interactions between hardware, software, wireless, and cloud-based solutions, a managed network may occasionally experience disruptions and/or downtime due to, among other things, hardware/software conflicts, communication-related issues, obsolete equipment, and/or user error (“Conflicts”). We cannot and do not guarantee that such Conflicts will not occur, and you understand and agree that the number of service tickets submitted by you is not, by itself, an indication of default by Pella Technology Services, Inc..
b) Client Activity as a Basis for Termination. If you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then in addition to Pella Technology Services, Inc.’s other rights under this Agreement, Pella Technology Services, Inc. will have the right upon providing you with ten (10) days prior written notice, to terminate this Agreement or the applicable Proposal For Cause.
c) Consent. You and we may mutually consent, in writing, to terminate a Proposal or this Agreement at any time.
d) Equipment / Software Removal. Upon termination of this Agreement or applicable Proposal for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which Pella Technology Services, Inc. Equipment is located to enable us to remove all Pella Technology Services, Inc. Equipment from the premises. If you fail or refuse to grant Pella Technology Services, Inc. access as described herein, or if any of the Pella Technology Services, Inc. Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Pella Technology Services, Inc.-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of all missing or damaged items. Certain services may require the installation of software agents in the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.
e) Transition; Deletion of Data. If you request our assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Pella Technology Services, Inc. providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. You also understand and agree that any software configurations that we custom create or program for you are our proprietary information and shall not be disclosed to you under any circumstances. Unless otherwise expressly stated in a Proposal or Services Guide or prohibited by applicable law, we will have no obligation to store or maintain any Client data in our possession or control following the termination of this Agreement or the applicable Services.

CONFIDENTIALITY

a) Defined. For the purposes of this Agreement, Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
b) Use. The Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Discloser in writing, or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any law, rule, or industry-related regulation.
c) Due Care. The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
d) Compelled Disclosure. If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, that Recipient will immediately notify the Discloser in writing of such requirement so that the Recipient may seek a protective order or other appropriate remedy and/or waive the Discloser’s compliance with the provisions of this Section. The Recipient will use its best efforts, as directed by the Discloser and at the Discloser’s expense, to obtain or assist the Recipient in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the Discloser), that the Recipient is legally compelled to disclose.
e) Additional NDA. In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information (such as, for example, a business associate agreement). In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information.

OWNERSHIP

Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement, any Proposal, or a Services Guide conveys or grants any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the purposes of clarity, you understand and agree that we own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. If we provide licenses to you for third party software, then you understand and agree that such software is licensed, and not sold, to you, and your use of that software is subject to the terms and conditions of (i) this Agreement, (ii) the applicable Proposal, (iii) written directions supplied to you by us, and (iv) any applicable EULA; no other uses of such third party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied, with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.

ARBITRATION

Except for undisputed collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) or if there is no AAA -certified arbitrator available within a twenty (20) mile radius of our office, then by any arbitration forum as determined by us, pursuant to the selected forum’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

MISCELLANEOUS

a) Changes to Services Guide. Services we provide and/or facilitate may be further described and governed under our Services Guide (described above). We reserve the right, and you hereby agree that we are permitted, to modify our Services Guide (and the Services themselves) from time to time, in our discretion, to accommodate changes in the industry and relevant services required under a Proposal. You will be notified of those changes (if any) by email.
b) End User Agreements. Portions of the Services may require you to accept the terms of one or more third party end user license agreements, third party customer agreements and/or third party subscription agreements (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required in order for you to receive any Services, then you hereby grant us permission to accept the applicable agreement(s) on your behalf. End User Agreements may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree to be bound by the terms of all applicable End User Agreements. If, while providing the Services, you or we are required to comply with an End User Agreement and that agreement is modified or amended, we reserve the right to modify or amend any applicable Proposal with you to ensure your and our continued compliance with the terms of the applicable End User Agreement. Due to a large number of clients utilizing Microsoft products, the link to the Microsoft Customer Agreement is located at https://www.microsoft.com/licensing/docs/customeragreement.
c) BYOD. You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in writing by us, Devices managed under a Proposal will not receive or benefit from the Services while the devices are detached from, or unconnected to, the Environment. Client is strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.
d) Equipment. The information on equipment returned to us at the end of the Services will be deleted; however, we cannot and do not guarantee that deleted information will be rendered irrecoverable under all circumstances. For that reason, we strongly recommend that you permanently delete any personal, confidential, and/or highly sensitive information from such equipment before returning that equipment to us.
e) Compliance. Unless otherwise expressly stated in a Proposal, the Services are not intended, and will not be used, to bring Client into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Client’s business or operations. Depending on the Services provided, the Services may aid Client’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.
f) Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law (such as HIPAA), then you agree to identify to us any data or information subject to protection under that law prior to providing such information to us or, as applicable, prior to giving us access to such information.
g) No Fiduciary. The scope of our relationship with you is limited to the specific Services provided to you; no other relationship, fiduciary or otherwise, exists or will exist between us. If, by operation of law, a fiduciary relationship is imposed or presumed for out-of-scope services, you hereby waive that relationship and any fiduciary obligations thereunder.
h) Virtual Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined, or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a Proposal, the recovery of Impacted Data is out-of-scope. Moreover, unless expressly stated in a Proposal or Services Guide, we will not be responsible for activating multifactor authentication in any application in or connected to the Environment. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents.
i) Physical Security. You agree to implement and maintain reasonable physical security for all managed hardware and related devices in your physical possession or control. Such security measures must include (i) physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment, (ii) an alarm system to mitigate and/or prevent unauthorized access to the premises at which the protected equipment is located, (iii) fire detection and retardant systems, and (iv) periodic reviews of personnel access rights to ensure that access policies are being enforced, and to help ensure that all access rights are correct and promptly updated.
j) Updates. Patches and updates to hardware and software (“Updates”) are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If Updates are provided to you as part of the Services, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, (iii) we will not be responsible for the remediation of any device or software that is rendered inoperable or non-functional due to the Update, and (iv) we reserve the right, but not the obligations, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.
k) Non-Solicitation. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of the other party’s employees with whom the Restricted Party worked to discontinue or reduce the scope of their business relationship with the other party, or recruit, solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current Proposal immediately For Cause.
l) Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.
m) Assignment. Neither this Agreement nor any Proposal may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that the assignee expressly assumes our obligations hereunder.
n) Amendment. This Agreement and any Proposal may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that is initiated by us, and that specifically refers to this Agreement or the Proposal being amended and is affirmatively accepted in writing (email or electronic signature is acceptable) by you.
o) Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
p) Severability. If any provision in this Agreement, any Proposal, or the Services Guide is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions will be valid and enforceable to the fullest extent permitted by applicable law.
q) Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
r) No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
s) Merger. This Agreement coupled with the Proposal and the Services Guide sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements unless they are explicitly set forth in this Agreement or in a Proposal or Services Guide. Our website and marketing materials are provided to you for illustrative or educational purposes only and are not intended (and will not be interpreted as) creating additional duties, requirements, service levels, or promises or guarantees of specific services or specific service results.
t) Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
u) Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
v) Governing Law; Venue. This Agreement will be governed by, and construed according to, the laws of the state of Florida. You hereby irrevocably consent to the exclusive jurisdiction and venue of Hillsborough County, Florida, for all non-arbitrable claims and causes of action with us that arise from or relate to this Agreement.
w) No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
x) Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.
y) Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by postal mail, overnight courier, or email as follows: notice will be deemed delivered three (3) business days after being deposited in postal mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx, DHL, or other overnight courier, or one (1) day after notice is delivered by email. Notice sent by email will be sufficient only if the message is sent to the last known email address of the recipient or such other email address that is expressly designated by the recipient for the receipt of legal notices. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.
z) Independent Contractor. Pella Technology Services, Inc. is an independent contractor, and is not your employer, employee, partner, or affiliate.
dd) Network Device Management and Liability. All devices connecting to the corporate network must be actively managed by Pella Technology or an approved management system that meets the company’s security standards. If a non-corporate or unmanaged device is connected to the corporate network, Pella Technology shall not be held liable for any resulting data breaches, ransomware attacks, loss of production time, or financial damages or fees incurred due to such incidents. This clause is intended to limit liability in accordance with applicable data protection laws and cybersecurity standards.
bb) Data & Service Access. Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.
cc) “Per Seat” Licensing Fees. The Services may require us to purchase certain “per seat” licenses from Third Party Providers (such as, for example, Microsoft which sells per seat licenses under its “New Commerce Experience” licensing model). Unless otherwise expressly stated in a Proposal, per seat licenses cannot be canceled once they are purchased and cannot be transferred to any other customer. If we purchase per seat licenses for you, then those licenses will require a definite term—such as a one (1) or three (3) year term—which may be paid annually or monthly but, in all cases, must be paid in full by you; please see your Proposal for details. For that reason, you understand and agree that regardless of the reason for termination of the Services, you are required to pay for all applicable per seat licenses in full for the entire term of those licenses. Provided that you have paid for those licenses in full, you will be permitted to use the licenses until they expire, even if you move to a different managed service provider.
dd) Network Device Management and Liability
All devices connecting to the corporate network must be actively managed by Pella Technology or an approved management system that meets the company’s security standards. If a non-corporate or unmanaged device is connected to the corporate network, Pella Technology shall not be held liable for any resulting data breaches, ransomware attacks, loss of production time, or financial damages or fees incurred due to such incidents. This clause is intended to be legally binding and to limit liability in accordance with applicable data protection laws and cybersecurity standards.
ee) Counterparts. The parties intend to sign, accept and/or deliver any Proposal, this Agreement, or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Proposal, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

Last Updated: August 2024

Please note, unless otherwise expressly stated in the Quote, onboarding-related services do not include the remediation of any issues, errors, or deficiencies (“Issues”), and we cannot guarantee that all Issues will be detected during the onboarding process.

13 (Vendor Management)

Please note: Vendor management services are limited to facilitation-type services only for existing warranties and service plans pertaining to Covered Vendor Devices. This service does not create, modify, or guarantee any manufacturer or other warranty for Covered Vendor Devices.

13 (Wi-Fi Services)

Installed equipment will be compatible with the then-current industry standards, and renew the hardware at no charge to Client every five years at the latest.

(Support services will be provided on a “best efforts” basis only, and Client understands that some end-user devices may not connect to the wireless network, or they may connect but not perform well).

All additions below this point are a copy of the “Additional Description of Services” section from P. 13 forward in the Services Guide

The following additional details further explain and define the scope of the Services.

Hardware as a Service (HaaS)

HaaS Equipment We will provide you with the HaaS Equipment described in the Quote or, if no hardware is expressly designated as HaaS Equipment in the Quote, then a complete list of HaaS Equipment will be provided to you under separate cover.

Deployment. We will deploy the HaaS Equipment within the timeframe stated in the Quote, provided that you promptly provide all information that we reasonably request from you to complete deployment.  This deployment guaranty does not apply to any software, other managed services, or hardware devices other than the HaaS Equipment. If you wish to delay the deployment of the HaaS Equipment, then you may do so provided that you give us written notice of your election to delay no later than five (5) days following the date you sign the Quote.  Deployment shall not extend beyond two (2) months following the date on which you sign the Quote.  You will be charged at the rate of fifty percent (50%) of the monthly recurring fees for the HaaS-related services during the period of delay.  Following deployment, we will charge you the full monthly recurring fee (plus other usage fees as applicable) for the full term indicated in the Quote.

Equipment Hardware Repair or Replacement. Pella Technology Services will repair or replace HaaS Equipment by the end of the business day following the business day on which the applicable problem is identified by, or reported to, Pella Technology Services and has been determined by Pella Technology Services to be incapable of being remediated remotely.

This warranty does not include the time required to rebuild your system, such as the time required to configure a replacement device, rebuild a RAID array, reload the operating system, reload and configure applications, and/or restore from backup (if necessary).

If Pella Technology Services fails to meet the warranties in this section and the failure materially and adversely affects your hosted environment (“Hosted System”), you are entitled to a credit in the amount of 5% of the monthly fee per hour of downtime (after the initial one (1) hour allocated to problem identification), up to 100% of your monthly fee for the affected HaaS Equipment.  In no event shall a credit exceed 100% of the applicable month’s monthly fee for the affected equipment.

Periodic Replacement of HaaS Equipment.  From time to time and in our discretion, we may decide to swap out older HaaS Equipment for updated or newer equipment.  (Generally, equipment that is five years old or older may be appropriate for replacement).  If we elect to swap out HaaS Equipment due to normal, periodic replacement, then we will notify you of the situation and arrange a mutually convenient time for such activity.

Return of HaaS Equipment. Unless we expressly direct you to do so, you will not remove or disable, or attempt to remove or disable, any software agents that we installed in the HaaS Equipment.  Doing so could result in network vulnerabilities and/or the continuation of license fees for the software agents for which you will be responsible, and/or the requirement that we remediate the situation at our then-current hourly rates, for which you will also be responsible.  Within ten (10) days after the termination of HaaS-related Services, Client will provide Pella Technology Services access to the premises at which the HaaS Equipment is located so that all such equipment may be retrieved and removed by us.  If you fail to provide us with timely access to the HaaS Equipment or if the equipment is returned to us damaged (normal wear and tear excepted), then we will have the right to charge you, and you hereby agree to pay, the replacement value of all such unreturned or damaged equipment.

Covered Equipment / Hardware / Software

Managed Services will be applied to the equipment listed in the Quote (“Covered Hardware”).

We will provide support for any software applications that are licensed through us (see “Recurring Services” above), as well as any software that we approve in writing. Such software (“Supported Software”) will be supported on a “best efforts” basis only, and any support required beyond Level 2-type support will be facilitated with the applicable software vendor/producer.  Coverage for non-Supported Software is outside of the scope of the Quote and will be provided to you on a best-efforts basis and time-and-materials basis. Should our technicians provide you with advice concerning non-Supported Software, the provision of that advice should be viewed as an accommodation, not an obligation, to you.

Physical Locations Covered by Services

Services will be provided remotely unless, in our discretion, we determine that an onsite visit is required.  Onsite visits will be scheduled in accordance with the priority assigned to the issue (below) and are subject to technician availability.  Unless we agree otherwise, all onsite Services will be provided at Client’s primary office location listed in the Quote.  Additional fees may apply for onsite visits: Please review the Service Level section below for more details.

Term; Termination

The Services will commence, and billing will begin, on the date indicated in the Quote (“Commencement Date”) and will continue through the initial term listed in the Quote (“Initial Term”). We reserve the right to delay the Commencement Date until all onboarding/transition services (if any) are completed, and all deficiencies / revisions identified in the onboarding process (if any) are addressed or remediated to Pella Technology Services’s satisfaction.

The Services will continue through the Initial Term until terminated as provided in the Agreement, the Quote, or as indicated in this section (the “Service Term”).

Auto-Renewal.  After the expiration of the initial Service Term, the Service Term will automatically renew for contiguous terms equal to the initial Service Term unless either party notifies the other of its intention to not renew the Services no less than thirty (30) days before the end of the then-current Service Term.

Per Seat Licensing: Regardless of the reason for the termination of the Services, you will be required to pay for all per seat licenses (such as, if applicable, Microsoft NCE licenses) that we acquire on your behalf. Please see “Per Seat License Fees” in the Fees section below for more details.

Assumptions / Minimum Requirements / Exclusions

The scheduling, fees and provision of the Services are based upon the following assumptions and minimum requirements:

Server hardware must be under current warranty coverage.

All equipment with Microsoft Windows® operating systems must be running then-currently supported versions of such software and have all of the latest Microsoft service packs and critical updates installed.

All software must be genuine, licensed and vendor-supported.

Server file systems and email systems (if applicable) must be protected by licensed and up-to-date virus protection software.

The Environment must have a currently licensed, vendor-supported server-based backup solution that can be monitored.

All wireless data traffic in the environment must be securely encrypted.

There must be an outside static IP address assigned to a network device, allowing VPN/RDP control access. If utilizing a Managed Security Appliance, dynamic DNS is permissible in lieu of a static IP address.

All servers must be connected to working UPS devices.

Recovery coverage assumes data integrity of the backups or the data stored on the backup devices.  We do not guarantee the integrity of the backups or the data stored on the backup devices.  Server restoration will be to the point of the last successful backup.

Client must provide all software installation media and key codes in the event of a failure.

Any costs required to bring the Environment up to these minimum standards are not included in this Services Guide.

Client must provide us with exclusive administrative privileges to the Environment.

Client must not affix or install any accessory, addition, upgrade, equipment, or device on to the firewall, server, or NAS appliances (other than electronic data) unless expressly approved in writing by us.

Exclusions.  Services that are not expressly described in the Quote will be out of scope and will not be provided to Client unless otherwise agreed, in writing, by Pella Technology Services.  Without limiting the foregoing, the following services are expressly excluded, and if required to be performed, must be agreed upon by Pella Technology Services in writing:

Customization of third-party applications, or programming of any kind.

Support for operating systems, applications, or hardware no longer supported by the manufacturer.

Data/voice wiring or cabling services of any kind.

Battery backup replacement

Equipment relocation

The cost to bring the Environment up to the Minimum Requirements (unless otherwise noted in “Scope of Services” above).

The cost of repairs to hardware or any supported equipment or software, or the costs to acquire parts or equipment, or shipping charges of any kind.

Service Levels

Automated monitoring is provided on an ongoing (i.e., 24x7x365) basis. Response, repair, and/or remediation services (as applicable) will be provided only during our business hours (currently M-F, 8:30 AM – 5 PM Eastern Time, excluding Pella Technology Services-observed holidays—listed below), unless otherwise specifically stated in the Quote or as otherwise described below.

We will respond to problems, errors, or interruptions in the provision of the Services during business hours in the timeframe(s) described below. Severity levels will be determined by Pella Technology Services in our discretion after consulting with the Client.  All remediation services will initially be attempted remotely; Pella Technology Services will provide onsite service only if remote remediation is ineffective and, under all circumstances, only if covered under the Service plan selected by Client.

Trouble / Severity	Response Time
Critical:  Service not available (e.g., all users and functions unavailable)	Response within two (1) business hours after notification.
Significant Degradation (e.g., large number of users or business critical functions affected)	Response within four (4) business hours after notification.
Limited Degradation (e.g., limited number of users or functions affected, business process can continue).	Response within eight (8) business hours after notification.
Small Service Degradation (e.g., business process can continue, one user affected).	Response within two (2) business days after notification.
Long Term Project, Preventative Maintenance	Response within four (4) business days after notification.

* All time frames are calculated as of the time that Pella Technology Services is notified of the applicable issue / problem by Client through Pella Technology Services’ designated email, support portal, or by telephone at the telephone number listed in the Quote.  Notifications received in any manner other than described herein may result in a delay in the provision of remediation efforts.

Support During Off-Hours/Non-Business Hours: Technical support provided outside of our normal business hours are offered on a case-by-case basis, and are subject to technician availability. If Pella Technology Services agrees to provide off-hours/non-business hours support (“Non-Business Hour Support”), then the support will be provided on a time-and-materials basis (which is not covered under any Service plan), and will be billed to Client at 2x the normal hourly rate.

All hourly services are billed in 15-minute increments, and partial increments are rounded to the next highest increment.  A one (1) hour minimum applies to all Non-Business Hour Support.

Pella Technology Services-Observed Holidays: Pella Technology Services observes the following holidays:

New Year’s Day

Good Friday

Memorial Day

Independence Day

Labor Day

Thanksgiving Day

Christmas Eve – Half Day

Christmas Day

New Year’s Eve – Half Day

Due to varying days of the week in which a holiday may fall, the day prior or the day after the holiday may also be observed. For example, if a holiday falls on a Tuesday or Thursday, the preceding Monday or following Friday may be included.

Service Credits: Our service level target is 90% as measured over a calendar month (“Target Service Level”). If we fail to adhere to the Target Service Level and Client timely brings that failure to our attention in writing (as per the requirements of the MSA), then Client will be entitled to receive a pro-rated service credit equal to 1/30 of that calendar month’s recurring service fees (excluding hard costs, licenses, etc.) for each day on which the Target Service Level is missed.  Under no circumstances shall credits exceed 30% of the total monthly recurring service fees under an applicable Quote.

Fees

The fees for the Services will be as indicated in the Quote.

Changes to Environment.  Initially, you will be charged the monthly fees indicated in the Quote.  Thereafter, if the managed environment changes, or if the number of authorized users accessing the managed environment changes, then you agree that the fees will be automatically and immediately modified to accommodate those changes.

Minimum Monthly Fees. The initial Fees indicated in Quote are the minimum monthly fees (“MMF”) that will be charged to you during the term.  You agree that the amounts paid by you under the Quote will not drop below the MMF regardless of the number of users or devices to which the Services are directed or applied, unless we agree to the reduction.  All modifications to the amount of hardware, devices, or authorized users under the Quote (as applicable) must be in writing and accepted by both parties.

Increases.  In addition, we reserve the right to increase our monthly recurring fees and, if applicable, our data recovery-related fees; provided, however, if an increase is more than five percent (5%) of the fees charged for the Services in the prior calendar year, then you will be provided with a sixty (60) day opportunity to terminate the Services by providing us with written notice of termination. You will be responsible for the payment of all fees that accrue up to the termination date and all pre-approved, non-mitigatable expenses that we incurred in our provision of the Services through the date of termination.  Your continued acceptance or use of the Services after this sixty (60) day period will indicate your acceptance of the increased fees.

In addition to the foregoing, we reserve the right to pass through to you any increases in the costs and/or fees charged by third-party providers for the third-party services (“Pass Through Increases”). Since we do not control third-party providers, we cannot predict whether such price increases will occur, however, should they occur, we will endeavor to provide you with as much advance notice as reasonably possible.

Travel Time.  If onsite services are provided, we will travel up to 45 minutes from our office to your location at no charge.  Time spent traveling beyond 45 minutes (e.g., locations that are beyond 45 minutes from our office, occasions on which traffic conditions extend our drive time beyond 45 minutes one-way, etc.) will be billed to you at our then-current hourly rates.  In addition, you will be billed for all tolls, parking fees, and related expenses that we incur if we provide onsite services to you.

Appointment Cancellations.  You may cancel or reschedule any appointment with us at no charge by providing us with notice of cancellation at least one business day in advance. If we do not receive timely a notice of cancellation/re-scheduling, or if you are not present at the scheduled time or if we are otherwise denied access to your premises at a pre-scheduled appointment time, then you agree to pay us a cancellation fee equal to two (2) hours of our normal consulting time (or non-business hours consulting time, whichever is appropriate), calculated at our then-current hourly rates.

Automated Payment.  You may pay your invoices by credit card and/or by ACH, as described below.  If you authorize payment by credit card and ACH, then the ACH payment method will be attempted first.  If that attempt fails for any reason, then we will process payment using your designated credit card.

ACH.  When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account, as defined and configured by you in our payment portal, for any payments due under the Quote.  This authorization will continue until otherwise terminated in writing by you.  We will apply a $35.00 service charge to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.

Credit Card.  When enrolled in a credit card payment processing method, you authorize us to charge your credit card, as designated by you in our payment portal, for any payments due under the Quote.

Microsoft Licensing Fees. The Services require that we purchase certain “per seat” licenses from Microsoft (which Microsoft refers to as New Commerce Experience or “NCE Licenses”) in order to provide you with one or more of the following applications: Microsoft 365, Dynamics 365, Windows 365, and Microsoft Power Platform (each, an “NCE Application”). To leverage the discounts offered by Microsoft for these applications and to pass those discounts through to you, we will purchase NCE Licenses for one (1) year terms for the NCE Applications required under the Quote. As per Microsoft’s requirements, NCE Licenses cannot be canceled once they are purchased and cannot be transferred to any other customer. Each NCE License that we purchase may require a one (1) or three (3) year term. For that reason, you understand and agree that regardless of the reason for termination of the Services, you are required to pay for all applicable NCE Licenses in full for the entire term of those licenses. Provided that you have paid for the NCE Licenses in full, you will be permitted to use those licenses until they expire, even if you move to a different managed service provider.

Removal of Software Agents; Return of Firewall & Backup Appliances

Unless we expressly direct you to do so, you will not remove or disable, or attempt to remove or disable, any software agents that we installed in the Environment.  Doing so without our guidance may make it difficult or impracticable to remove the software agents, which could result in network vulnerabilities and/or the continuation of license fees for the software agents for which you will be responsible, and/or the requirement that we remediate the situation at our then-current hourly rates, for which you will also be responsible.  Depending on the particular software agent and the costs of removal, we may elect to keep the software agent in the Environment but in a dormant and/or unused state.

Within ten (10) days after being directed to do so, Client will remove, package and ship, at Client’s expense and in a commercially reasonable manner, all hardware, equipment, and accessories provided to Client by Pella Technology Services that were used in the provision of the Services.  If you fail to timely return all equipment to us, or if the equipment is returned to us damaged (normal wear and tear excepted), then we will have the right to charge you, and you hereby agree to pay, the replacement value of all such unreturned or damaged equipment.

Additional Terms

Authenticity

Everything in the managed environment must be genuine and licensed—including all hardware, software, etc. If we ask for proof of authenticity and/or licensing, you must provide us with such proof. All minimum hardware or software requirements as indicated in a Quote or this Services Guide (“Minimum Requirements”) must be implemented and maintained as an ongoing requirement of us providing the Services to you.

Monitoring Services; Alert Services

Unless otherwise indicated in the Quote, all monitoring and alert-type services are limited to detection and notification functionalities only.  Monitoring levels will be set by Pella Technology Services, and Client shall not modify these levels without our prior written consent.

Remediation

Unless otherwise provided in the Quote, remediation services will be provided in accordance with the recommended practices of the managed services industry.  Client understands and agrees that remediation services are not intended to be, and will not be, a warranty or guarantee of the functionality of the Environment, or a service plan for the repair of any particular piece of managed hardware or software.

Configuration of Third-Party Services

Certain third-party services provided to you under this Services Guide may provide you with administrative access through which you could modify the configurations, features, and/or functions (“Configurations”) of those services.  However, any modifications of Configurations made by you without our knowledge or authorization could disrupt the Services and/or or cause a significant increase in the fees charged for those third-party services. For that reason, we strongly advise you to refrain from changing the Configurations unless we authorize those changes. You will be responsible for paying any increased fees or costs arising from or related to changes to the Configurations.

Dark Web Monitoring

Our dark web monitoring services utilize the resources of third-party solution providers.  Dark web monitoring can be a highly effective tool to reduce the risk of certain types of cybercrime; however, we do not guarantee that the dark web monitoring service will detect all actual or potential uses of your designated credentials or information.

Modification of Environment

Changes made to the Environment without our prior authorization or knowledge may have a substantial, negative impact on the provision and effectiveness of the Services and may impact the fees charged under the Quote. You agree to refrain from moving, modifying, or otherwise altering any portion of the Environment without our prior knowledge or consent.  For example, you agree to refrain from adding or removing hardware from the Environment, installing applications on the Environment, or modifying the configuration or log files of the Environment without our prior knowledge or consent.

Co-Managed Environment

In co-managed situations (e.g., where you have designated other vendors or personnel, or “Co-managed Providers,” to provide you with services that overlap or conflict with the Services provided by us), we will endeavor to implement the Services in an efficient and effective manner; however, (a) we will not be responsible for the acts or omissions of Co-Managed Providers, or the remediation of any problems, errors, or downtime associated with those acts or omissions, and (b) in the event that a Co-managed Provider’s determination on an issue differs from our position on a Service-related matter, we will yield to the Co-Managed Provider’s determination and bring that situation to your attention

Anti-Virus; Anti-Malware

Our anti-virus / anti-malware solution will generally protect the Environment from becoming infected with new viruses and malware (“Viruses”); however, Viruses that exist in the Environment at the time that the security solution is implemented may not be capable of being removed without additional services, for which a charge may be incurred.  We do not warrant or guarantee that all Viruses and malware will be capable of being detected, avoided, or removed, or that any data erased, corrupted, or encrypted by malware will be recoverable.  In order to improve security awareness, you agree that Pella Technology Services or its designated third-party affiliate may transfer information about the results of processed files, information used for URL reputation determination, security risk tracking, and statistics for protection against spam and malware. Any information obtained in this manner does not and will not contain any personal or confidential information.

Breach/Cyber Security Incident Recovery

Unless otherwise expressly stated in the Quote, the scope of the Services does not include the remediation and/or recovery from a Security Incident (defined below).  Such services, if requested by you, will be provided on a time-and-materials basis under our then-current hourly labor rates.  Given the varied number of possible Security Incidents, we cannot and do not warrant or guarantee (i) the amount of time required to remediate the effects of a Security Incident (or that recovery will be possible under all circumstances), or (ii) that all data impacted by the incident will be recoverable.  For the purposes of this paragraph, a Security Incident means any unauthorized or impermissible access to or use of the Environment, or any unauthorized or impermissible disclosure of Client’s confidential information (such as user names, passwords, etc.), that (i) compromises the security or privacy of the information or applications in, or the structure or integrity of, the Environment, or (ii) prevents normal access to the Environment, or impedes or disrupts the normal functions of the Environment.

Environmental Factors

Exposure to environmental factors, such as water, heat, cold, or varying lighting conditions, may cause installed equipment to malfunction.  Unless expressly stated in the Quote, we do not warrant or guarantee that installed equipment will operate error-free or in an uninterrupted manner, or that any video or audio equipment will clearly capture and/or record the details of events occurring at or near such equipment under all circumstances.

Fair Usage Policy

Our Fair Usage Policy (“FUP”) applies to all Services that are described or designated as “unlimited.”  An “unlimited” service designation means that, subject to the terms of this FUP, you may use the service as reasonably necessary for you to enjoy the use and benefit of the service without incurring additional time-based or usage-based costs.  However, unless expressly stated otherwise in the Quote, all unlimited services are provided during our normal business hours only and are subject to our technicians’ availabilities, which cannot always be guaranteed.  In addition, we reserve the right to assign our technicians as we deem necessary to handle issues that are more urgent, critical, or pressing than the request(s) or issue(s) reported by you.  Consistent with this FUP, you agree to refrain from (i) creating urgent support tickets for non-urgent or non-critical issues, (ii) requesting excessive support services that are inconsistent with normal usage patterns in the industry (e.g., requesting support in lieu of training), (iii) requesting support or services that are intended to interfere, or may likely interfere, with our ability to provide our services to our other customers.

Hosted Email

You are solely responsible for the proper use of any hosted email service provided to you (“Hosted Email”).

Hosted Email solutions are subject to acceptable use policies (“AUPs”), and your use of Hosted Email must comply with those AUPs. In all cases, you agree to refrain from uploading, posting, transmitting or distributing (or permitting any of your authorized users of the Hosted Email to upload, post, transmit or distribute) any prohibited content, which is generally content that (i) is obscene, illegal, or intended to advocate or induce the violation of any law, rule or regulation, or (ii) violates the intellectual property rights or privacy rights of any third party, or (iii) mischaracterizes you, and/or is intended to create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication, or (iv)  interferes or disrupts the services provided by Pella Technology Services or the services of any third party, or (v) contains Viruses, trojan horses or any other malicious code or programs.  In addition, you must not use the Hosted Email for the purpose of sending unsolicited commercial electronic messages (“SPAM”) in violation of any federal or state law.  Pella Technology Services reserves the right, but not the obligation, to suspend Client’s access to the Hosted Email and/or all transactions occurring under Client’s Hosted Email account(s) if Pella Technology Services believes, in its discretion, that Client’s email account(s) is/are being used in an improper or illegal manner.

Patch Management

We will keep all managed hardware and managed software current with critical patches and updates (“Patches”) as those Patches are released generally by the applicable manufacturers.  Patches are developed by third-party vendors and, on rare occasions, may make the Environment, or portions of the Environment, unstable or cause the managed equipment or software to fail to function properly even when the Patches are installed correctly.  We will not be responsible for any downtime or losses arising from or related to the installation or use of any Patch.  We reserve the right, but not the obligation, to refrain from installing a Patch if we are aware of technical problems caused by a Patch, or we believe that a Patch may render the Environment, or any portion of the Environment, unstable.

Backup (BDR) Services

All data transmitted over the Internet may be subject to malware and computer contaminants such as viruses, worms and trojan horses, as well as attempts by unauthorized users, such as hackers, to access or damage Client’s data.  Neither Pella Technology Services nor its designated affiliates will be responsible for the outcome or results of such activities.

BDR services require a reliable, always-connected internet solution.  Data backup and recovery time will depend on the speed and reliability of your internet connection.  Internet and telecommunications outages will prevent the BDR services from operating correctly.  In addition, all computer hardware is prone to failure due to equipment malfunction, telecommunication-related issues, etc., for which we will be held harmless.  Due to technology limitations, all computer hardware, including communications equipment, network servers and related equipment, has an error transaction rate that can be minimized, but not eliminated.  Pella Technology Services cannot and does not warrant that data corruption or loss will be avoided, and Client agrees that Pella Technology Services shall be held harmless if such data corruption or loss occurs.  Client is strongly advised to keep a local backup of all of stored data to mitigate against the unintentional loss of data.

Procurement

Equipment and software procured by Pella Technology Services on Client’s behalf (“Procured Equipment”) may be covered by one or more manufacturer warranties, which will be passed through to Client to the greatest extent possible.  By procuring equipment or software for Client, Pella Technology Services does not make any warranties or representations regarding the quality, integrity, or usefulness of the Procured Equipment.  Certain equipment or software, once purchased, may not be returnable or, in certain cases, may be subject to third-party return policies and/or re-stocking fees, all of which shall be Client’s responsibility in the event that a return of the Procured Equipment is requested.  Pella Technology Services is not a warranty service or repair center.  Pella Technology Services will facilitate the return or warranty repair of Procured Equipment; however, Client understands and agrees that (i) the return or warranty repair of Procured Equipment is governed by the terms of the warranties (if any) governing the applicable Procured Equipment, for which Pella Technology Services will be held harmless, and (ii) Pella Technology Services is not responsible for the quantity, condition, or timely delivery of the Procured Equipment once the equipment has been tendered to the designated shipping or delivery courier.

Business Review; IT Strategic Planning

Suggestions and advice rendered to Client are provided in accordance with relevant industry practices, based on Client’s specific needs and Pella Technology Services’s opinion and knowledge of the relevant facts and circumstances.  By rendering advice, or by suggesting a particular service or solution, Pella Technology Services is not endorsing any particular manufacturer or service provider.

VCTO or VCIO Services

The advice and suggestions provided us in our capacity as a virtual chief technology or information officer will be for your informational and/or educational purposes only.  Pella Technology Services will not hold an actual director or officer position in Client’s company, and we will neither hold nor maintain any fiduciary relationship with Client.  Under no circumstances shall Client list or place the Pella Technology Services on Client’s corporate records or accounts.

Sample Policies, Procedures.

From time to time, we may provide you with sample (i.e., template) policies and procedures for use in connection with Client’s business (“Sample Policies”).  The Sample Policies are for your informational use only, and do not constitute or comprise legal or professional advice, and the policies are not intended to be a substitute for the advice of competent counsel.  You should seek the advice of competent legal counsel prior to using or distributing the Sample Policies, in part or in whole, in any transaction.  We do not warrant or guarantee that the Sample Policies are complete, accurate, or suitable for your (or your customers’) specific needs, or that you will reduce or avoid liability by utilizing the Sample Policies in your (or your customers’) business operations.

Penetration Testing; Vulnerability Assessment

You understand and agree that security devices, alarms, or other security measures, both physical and virtual, may be tripped or activated during the penetration testing process, despite our efforts to avoid such occurrences.  You will be solely responsible for notifying any monitoring company and all law enforcement authorities of the potential for “false alarms” due to the provision of the penetration testing services, and you agree to take all steps necessary to ensure that false alarms are not reported or treated as “real alarms” or credible threats against any person, place or property.  Some alarms and advanced security measures, when activated, may cause the partial or complete shutdown of the Environment, causing substantial downtime and/or delay to your business activities.  We will not be responsible for any claims, costs, fees or expenses arising or resulting from (i) any response to the penetration testing services by any monitoring company or law enforcement authorities, or (ii) the partial or complete shutdown of the Environment by any alarm or security monitoring device.

No Third-party Scanning

Unless we authorize such activity in writing, you will not conduct any test, nor request or allow any third-party to conduct any test (diagnostic or otherwise), of the security system, protocols, processes, or solutions that we implement in the managed environment (“Testing Activity”).  Any services required to diagnose or remediate errors, issues, or problems arising from unauthorized Testing Activity is not covered under the Quote, and if you request us (and we elect) to perform those services, those services will be billed to you at our then-current hourly rates.

HaaS

You will use all Pella Technology Services-hosted or Pella Technology Services-supplied equipment and hardware (collectively, “Infrastructure”) for your internal business purposes only.  You shall not sublease, sublicense, rent or otherwise make the Infrastructure available to any third-party without our prior written consent.  You agree to refrain from using the Infrastructure in a manner that unreasonably or materially interferes with our other hosted equipment or hardware, or in a manner that disrupts or that is likely to disrupt the services that we provide to our other clientele.  We reserve the right to throttle or suspend your access and/or use of the Infrastructure if we believe, in our sole but reasonable judgment, that your use of the Infrastructure is violates the terms of the Quote, this Services Guide, or the Agreement.

Obsolescence

If at any time any portion of the managed environment becomes outdated, obsolete, reaches the end of its useful life, or acquires “end of support” status from the applicable device’s or software’s manufacturer (“Obsolete Element”), then we may designate the device or software as “unsupported” or “non-standard” and require you to update the Obsolete Element within a reasonable time period.  If you do not replace the Obsolete Element reasonably promptly, then in our discretion we may (i) continue to provide the Services to the Obsolete Element using our “best efforts” only with no warranty or requirement of remediation whatsoever regarding the operability or functionality of the Obsolete Element, or (ii) eliminate the Obsolete Element from the scope of the Services by providing written notice to you (email is sufficient for this purpose).  In any event, we make no representation or warranty whatsoever regarding any Obsolete Element or the deployment, service level guarantees, or remediation activities for any Obsolete Element.

Hosting Services

You agree that you are responsible for the actions and behaviors of your users of the Services. In addition, you agree that neither Client, nor any of your employees or designated representatives, will use the Services in a manner that violates the laws, regulations, ordinances, or other such requirements of any jurisdiction.

In addition, Client agrees that neither it, nor any of its employees or designated representatives, will: transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be “spamming” and  carry out any “denial of service” attacks on any other website or Internet service; infringe on any copyright, trademark, patent, trade secret, or other proprietary rights of any third party; collect, attempt to collect, publicize, or otherwise disclose personally identifiable information of any person or entity without their express consent (which may be through the person or entity’s registration and/or subscription to Client’s services, in which case Client must provide a privacy policy which discloses any and all uses of information that you collect) or as otherwise required by law; or, undertake any action which is harmful or potentially harmful to Pella Technology Services or its infrastructure.

Client is solely responsible for ensuring that its login information is utilized only by Client and Client’s authorized users and agents. Client’s responsibility includes ensuring the secrecy and strength of user identifications and passwords. Pella Technology Services shall have no liability resulting from the unauthorized use of Client’s login information.  If login information is lost, stolen, or used by unauthorized parties or if Client believes that any hosted applications or hosted data has been accessed by unauthorized parties, it is Client’s responsibility to notify Pella Technology Services immediately to request the login information be reset or unauthorized access otherwise be prevented. Pella Technology Services will use commercially reasonable efforts to implement such requests as soon as practicable after receipt of notice.

Licenses

If we are required to re-install or replicate any software provided by you as part of the Services, then it is your responsibility to verify that all such software is properly licensed. We reserve the right, but not the obligation, to require proof of licensing before installing, re-installing, or replicating software into the managed environment.  The cost of acquiring licenses is not included in the scope of the Quote unless otherwise expressly stated therein.