InData Consulting ProCare Managed Services (MSP) Agreement
Innovative Data Consulting, Inc. (“InData” or “MSP”) is a California corporation located at 25350 Magic Mountain Parkway, Suite 300, Valencia, CA 91355. The following describes InData’s ProCare Managed Services terms and conditions for any organization (“Customer”) using InData’s ProCare Managed Services Agreement.
Purpose
The purpose of this Agreement is to document the terms of a relationship whereby InData shall render services to the client, according to the terms and conditions set forth in Exhibit A – Managed Services Benefits & Exclusions, which is attached hereto and incorporated by reference herein (“Services”).
Insurance
Each party is required to carry their own Errors and Omissions (E&O) and Cyber liability insurance. InData does not provide E&O or Cyber liability insurance as part of this agreement. InData provides a best-effort service to guide the Client in the prevention of cyberattacks. Hacking, bad actors, and acts of aggression by terrorist states or nations are not insured under this agreement. Each party shall indemnify and hold the other party harmless from any and all claims, demands, suits, actions, proceedings, loss, cost, and damages of any kind, including reasonable attorney fees, caused by or arising out of, or contributed to, in whole or in part, by reason of its own act, omission, professional error, fault, mistake, negligence or any such acts of omission by its employees, agents, representatives or subcontractors in connection with or incidental to the performance of this agreement.
Term of Agreement; Termination
(a) This Agreement shall commence on the date the contract was signed and continue for a period of 2 years.
If the Client fails to terminate this Agreement by giving written notice to InData at least thirty (30) days prior to the conclusion of the Initial Term or any renewal term thereafter, the Agreement will renew automatically for a period of one (1) year.
Notwithstanding anything to the contrary in the foregoing, InData may cancel this Agreement at any time during the term. The client may cancel the Agreement within 7 days of signing the initial agreement term. The client will be responsible for any labor and expenses during the 1st 7 days and any additional equipment purchased during that period.
(b) Upon termination of this Agreement, Client shall cease use of all InData-provided software on the termination date. This includes uninstalling any software and license keys in use. If the client does not remove InData-provided software, billing will continue for the full fee until the software is removed. The Client acknowledges that the removal of the provided software may leave its computers and other equipment without an adequate process for updates to operating systems, software, virus scanning, and cybersecurity protection. Service Provider is not responsible for any software or hardware failures or data covered by this Agreement resulting from the removal of software.
Fees
In consideration of the Services provided under this Agreement, the client agrees to pay InData according to the terms and conditions set forth for ProCare Managed Services rates. (see the pricing schedule on your contract for current rates)
After-hour emergency services will be billed at 2 times the contracted rate of the agreement unless the Agreement states otherwise. Holiday and expedited emergency services are billed at 2 times the standard contracted rates unless otherwise specified in your emergency services agreement. InData bills in 15-minute or .25 hours increments.
Payment
InData will invoice the Client directly for Services provided in accordance with this agreement. The client agrees to pay InData the amounts due as indicated by statements submitted by InData Due Upon Receipt. InData reserves the right to stop all work until the client’s account is brought current in the event that any Client invoice is more than ten (10) days past due. The Client shall be responsible for any and all collection costs incurred by InData due to the Client’s non-payment or late payment of fees and other costs enumerated herein. Such collection costs may include but are not limited to, attorney fees and court costs.
Notices
Any notice required by this Agreement shall be in writing and shall be effective when emailed or deposited in the United States mail, addressed to the other party at the address indicated below, and sent certified, with postage prepaid in full.
Transferability
InData reserves the right to transfer this contract to an alternate Managed Services Provider.
Independent Development; Residuals
The terms and conditions of this Agreement will not be interpreted or construed to limit InData’s right to independently develop or acquire products or services without the disclosure or use of Client’s Confidential Information or to use for any purpose anything related to InData products and services which may be retained by persons in their unaided memory who have had access liability, cost, expense, or loss, whether in contract, statute, tort or otherwise.
Ownership of InData Technology
InData has acquired, developed, or otherwise obtained rights in and may, in connection with the performance of Services, solely or jointly with others, acquire, conceive, develop, enhance, or modify various concepts, ideas, methods, processes, procedures, know-how, and techniques (including, without limitation, models, designs, architectures, frameworks, patterns, structures, templates, components, objects, code, logic, routines, utilities, tools, and software) pertaining to InData products and services (collectively, the “InData Technology”). The InData Technology as well as any intellectual property rights related thereto or based thereon (including, without limitation all patents, copyrights, trademarks, or other proprietary rights based thereon) is the sole and exclusive property of InData.
No Solicitation
The Client agrees not to recruit, hire or retain any of InData’s staff and/or outside contractors, or former employees for employment of any kind, either as an employee or an independent contractor, except through InData, within one (1) year of InData’s contract term expiration. Unless Client receives prior written consent and pays InData one hundred percent (100%) of employee’s annual compensation or contractor’s annual fees with Client for one (1) year (“Placement Fee”). Placement Fees will be paid to InData within thirty (30) days from the first date of employment or contract.
Commercial Software Licensing
InData does not support unlicensed commercial software or end-of-life software. The Client is required to keep an active support agreement with the manufacturer of the software for security patches, bug fixes, and escalation support. The service level of the support agreement of the manufacturer should mirror InData’s SLA. It should be either regular business hours or 24/7 depending on how critical the systems are to business operation.
Open Source Software Licensing
InData does not support Open Source software for mission-critical production business systems. Open Source software can be used in non-mission critical environments that will not directly impact productivity in the event any issues arise. InData will make a best effort to use community support methods and bill clients on a time and materials basis at our standard hourly rates.
Administrator and User Passwords
The Client agrees that all reasonable attempts will be made to ensure that only authorized and properly trained Client employees are privy to the current administrator or user password(s). The Client agrees that Administrator passwords should never be shared between employees or contractors. To properly track the root cause of a system change the Client will relieve InData of any legal claim that arises from the Client sharing or releasing an Administrator password to a 3rd party or an employee. The Client employees understand they should not store or transmit passwords via spreadsheets, email, text, or instant messenger. The Client understands never to provide passwords over the phone. The Client agrees not to write passwords on paper. The Client agrees that authorized employees who have access to administrator or user password(s) are not to perform any system changes without prior notification to InData. InData will store known Client provided passwords in a secure encrypted database that is protected by randomly generated multi-factor authentication tokens. InData will change passwords as needed.
Administrator and User Passwords Upon Termination of Service Agreement
Upon termination of a Service Agreement with InData, the policy is to deliver all known passwords to the new IT administrator or business sponsor. Once password credentials are sent to the Client, all customer passwords and data are permanently deleted for security purposes. Passwords will not be sent in a clear text format. During this transition period of sharing InData’s unique Administrator passwords or any systems, the Administrator password relieves InData of any legal liability.
Data Center Co-Location Space
Co-location of client IT equipment such as servers, networking, and storage in InData’s data center must adhere to the following terms. Unless otherwise specified in the agreement, InData is not responsible for managing equipment or data in the Client’s leased space. InData is not responsible for lost, damaged, or stolen equipment from the Client’s space. InData does not keep the door codes/passcode to the Client’s private co-location space. Once the Client selects power wattage and the number of circuits, upgrades are available for an additional fee. Power utilization is capped at the amount listed in your agreement. Bandwidth may be licensed from InData or 3rd parties providers. Adding any new service in the data center is an additional fee.
Automatic Data Center Hosting Renewal
The Term for all Data Center space and associated power circuits (if any) shall automatically renew for successive 12-month periods, with 5.00% increases in License Fees per year, unless either Party provides written notice of non-renewal or termination at least 90 days prior to the end of the then-current Term or renewal period. If either Party provides timely written notice of its intent not to renew and Customer fails to vacate the Space upon expiration of the then-current Term, Customer shall pay the Post-Term License Fee Percentage defined in the Agreement. The monthly License Fees for the Space are subject to 3.00% annual increases during the Term (including annual increases of rates used to calculate the Monthly License Fees for licensed power ramp periods, if any) for any Term greater than 12 months.
Wire Transfers
Wire fraud, email hacking, and phishing are on the rise. The Client agrees to always confirm wire instructions by calling (888) 502-3221 x 101 before sending funds. Call a trusted phone number, not the phone number in an email. NEVER respond to any emails claiming to contain revised or new wire instructions, even if they appear to be sent by InData, Client vendors, Client customers, or any party. Wire instructions from InData will never change. InData is not responsible for any wires sent by Clients’, Clients’ vendors, Clients’ customers, or any party to an incorrect bank account.
Limitation of Liability Clause (Revised):
InData’s total liability to the Client under this Agreement, including for termination or removal of software and services, and including indemnification obligations, shall not exceed the total amount paid by the Client to InData in the one (1) month preceding the claim. Under no circumstances shall InData be liable for any indirect, consequential, incidental, punitive, or special damages, including but not limited to lost profits, business interruptions, or data loss, even if advised of such potential damages.
Jurisdiction
Each party consents and agrees that all proceedings relating to the subject matter of this Agreement shall be maintained in Los Angeles, California. The jurisdiction and venue for such proceedings shall lie exclusively in Los Angeles, California. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address at which it is to receive notice as provided herein. This Agreement and performance hereunder shall be governed by the laws of the State of California without regard to conflict of laws.
Modification or Amendment
No amendment, change or modification of this agreement shall be valid unless made in writing as agreed upon by all parties.
Entire Understanding
This document and any exhibit attached constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no future force or effect.
Unenforceability Provisions
If any provisions of this agreement, or any portion thereof, are held to be invalid and unenforceable, then the remainder of this agreement shall nevertheless remain in full force and effect.
Exhibit A
Managed Services Program Benefits & Exclusions
Nature and Scope of Managed Services Program
This program is designed to maintain a company’s existing IT environment, address day-to-day issues or provide a specific IT Service outlined in the scope of work. Consulting services that go beyond maintenance of existing equipment and/or software application may be billable and are not covered under this agreement. Please refer to Exclusions on Section 4 of this document or call our office for more details.
Minimum Hardware & Software Requirements
The following are technical guidelines when qualifying individual workstations and servers under our Managed Services Maintenance program. InData reserves the right to modify these requirements and/or make exceptions as necessary in order to accommodate various technical and business objectives for our Client. When necessary, we will make a recommendation for hardware and software upgrades on systems that do not meet our minimum qualifications as follows:
Desktop/Laptop hardware: Microsoft Windows or Apple Macintosh – Intel process 3.0 GHz or more, 8GB of RAM or more, 250GB SSD hard drive or more.
Operating Systems: Windows 2019 Server, Windows 10 Pro, Apple OS Big Sur or above.
Service Responsibilities to Clients Under Managed Services Agreement
Network Connectivity Issues – Troubleshooting and resolution of all network problems to the Local Area Network (LAN) and as they relate to Internet access and access to network file servers and clients. InData will work with the Client’s Internet Service Provider (ISP) as necessary to maintain connectivity and troubleshoot issues.
Exclusions
What is Not Covered Under Managed Services?
Purchasing Computer Hardware and Software. InData will locate and purchase hardware and software as a service but will not pay for it under this agreement. All costs for new hardware, software, tax, and shipping will be at the client’s expense. No new hardware or software will be ordered without a signed purchase agreement. It is the Client’s responsibility to purchase any hardware, software, hardware parts, and software licenses required for proper functionality and legal compliance of its systems.
System Reviews by 3rd Parties
If a Client would like to arrange a 3rd party audit or 2nd opinion analysis InData must be present. This requirement is in place due to information security, password security, audit logging, and the potential for unauthorized changes to systems using InData credentials. InData has no liability for work performed by other 3rd parties without our knowledge. InData will charge our hourly rates to repair any changes made by 3rd parties.
New Hardware and Software Installations
InData will provide the Client with established labor costs for these services before performing the work required. New hardware and software are considered new projects. All hardware sales are final and cannot be returned without written authorization from the original equipment manufacturer. All approved hardware returns have a 20% restocking fee. Packaged software sales are final and cannot be returned. InData reserves the right to hold title to any equipment ordered until all payments have been received from the client.
Non-vendor Supported Third Party or Industry Specific Applications
3rd party software used for a Client’s specific industry or line of business must be supported by the original manufacturer that was originally purchased. Availability of application documentation, service packs, and updates, as well as technical support, is necessary to maintain these applications. Consulting services to maintain such applications where original vendor support is lacking are billable at established hourly labor rates. Simple items like installing a software key for the client will not be billed.
Non-Business Applications
Support for non-business applications such as games, Internet music/videos, and download sites like BitTorrent, iTunes, NetFlix, Pandora, screensavers, crypto miners, or third-party Windows or OSX enhancement programs that may cause potential computer problems are not covered. Please call our office if you have any questions about potentially non-business applications in your office computers.
Disaster Recovery
Unless otherwise specified or the Client has not signed up for Disaster Recovery as a Services (DRaaS), InData is not responsible for providing IT-related Disaster Recovery systems such as offsite or cloud-based systems. In the event of a disaster or catastrophic event such as fire, earthquake, flood, etc., resulting damage to the Client’s network computers including servers, data storage, desktops, and laptops will not be covered under this agreement unless otherwise specified. InData will assist in providing best effort to recover data and moving it to a disaster recovery site if needed at established hourly labor rates. InData highly encourages all Clients to understand the cost of downtime and sign up for Disaster Recovery as a Service (DRaaS) with InData. This is an optional service.
Data Backups
Unless otherwise specified or the Client has signed up for Backup as a Services (BaaS), InData is not responsible for providing IT-related data backups of computers, mobile devices, storage, unless otherwise stated in the agreement. InData will assist in providing the best effort to recover data at established hourly labor rates. InData highly encourages all Clients to understand the value of their business data and if warranted, sign up for Backup as a Service (BaaS) with InData. This is an optional service.
Phone Systems
Unless otherwise specified in the Managed Services Agreement, InData is not responsible for VOIP Client’s phone system or VOIP Network switches. The client needs to have an active support and maintenance contract with their preferred phone vendor. InData does offer VOIP phone systems.
Video Security
Unless otherwise specified in the Managed Services Agreement, InData is not responsible for the Client’s Video Security System. InData does offer video security systems.
Client Responsibility
To receive benefits under Managed Services, the Client is responsible for complying with the following:
To initiate a service request under this Agreement, the Client must call our office at (888) 502-3221 x 1 or send an email to mailto:[email protected].
The client will be asked a series of questions to assess the extent and cause of the problem. The technician may ask the Client to perform a walk-through over the phone or take control of the Client’s computer remotely to fix the problem. When a problem cannot be fixed via telephone or remote control within a reasonable amount of time, the technician will create a work order to be performed on-site. Any travel to the worksite may incur onsite travel fees which are billed at our standard rates.
The client must cooperate with the technician as necessary to ensure that the computer device is properly diagnosed and serviced. The Client will provide InData with a single point of contact to troubleshoot and maintain IT-related support.
Service Level Agreements
Our goal is to acknowledge a request for regular support is within 2 hours during normal business hours. When necessary, if within our onsite service region, a technician may be deployed onsite in critical system-down situations if the issue can’t be resolved remotely during regular business hours. Response to acknowledge a request for emergency support after-hours is by contract only. If the Client has purchased ProCare 24/7 Platinum support we will respond to support inquiry. When necessary, a technician may be deployed onsite for critical system-down situations. Response time is on a best-effort basis.
Standard Professional Conduct
InData agrees to treat Client and Client’s employees with respect at all times, especially during a time of business crisis. In return, InData expects the same treatment from Client and Client’s employees for InData employees, contractors, and vendors.
Peak Demand Periods
InData shall make its best effort to respond to the Client’s needs within the time frame stated in this agreement.
Loss of Service
The Client recognizes that InData makes every attempt to select the most reliable hardware and software for the Client’s use. InData shall use its best efforts, within the Client’s IT budget, to keep Client’s system up and running efficiently and cost-effectively while minimizing any downtime. InData is not liable for any failure or delay in performance caused by circumstances beyond its control.
Waiver of Subrogation To the extent permitted by law, each party waives all rights against the other for recovery of damages to the extent these damages are covered by their workers’ compensation and employers’ liability general liability, property insurance, commercial umbrella/excess, cyber or other commercial liability insurance obtained by either party. Client will not hold InData responsible for such losses and will confirm that the client’s insurance policies referenced above provide for the waiver of subrogation included in this agreement.
Break-Fix Hourly Services
Break-fix work for non-contracted clients is the best effort based on the availability of Help Desk Engineers. InData’s Managed Services customers take priority over break-fix hourly work.
ProCare Silver Support Hours
Monday – Friday, 9:00 am to 6:00 pm (Pacific) 5 days a week excluding holidays. 4-hour response goal.
ProCare Gold Support Hours
Monday – Friday, 9:00 am to 6:00 pm (Pacific), 5 days a week excluding holidays. 2-hour response goal.
ProCare Platinum Support Hours
24/7 Help Desk Service that matches contract SLA. 1-hour response goal.
Holidays
InData is closed on the following holidays:
New Year’s Day
Veterans Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Day after Thanksgiving
Christmas
Day after Christmas
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
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