This agreement is entered by and between EVERNET CONSULTING, LLC (EVERNET) located at 100 Pearl St, 14th Floor, Hartford, CT 06103, and THE CLIENT as defined in this MASTER SERVICES AGREEMENT.
WHEREAS, EVERNET is engaged in the business of providing a full range of information technology products and services; and
WHEREAS, THE CLIENT desires to retain EVERNET to provide information technology products and services; and
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties are subject to the following:
C L A U S E S
The present AGREEMENT contains the terms, conditions and provisions that will regulate all relationships between EVERNET and THE CLIENT. This document becomes applicable and enforceable once an active engagement occurs by and between THE CLIENT and EVERNET. The AGREEMENT may change without notice at any time and supersede any previous terms of services previously agreed to, published, or executed between the parties. THE CLIENT must request a current agreement at their discretion.
In order to have a better understating, interpretation and application of this AGREEMENT, the following words will have the following meanings:
Client (THE CLIENT): Any persons, businesses, entities, etc. who contacts or who is contacted by EVERNET is considered THE CLIENT. The term CLIENT, CUSTOMER and ACCOUNT are used interchangeably.
Engagement: An Engagement is any direct, implied, or indirect relationship with EVERNET. An active engagement is established once EVERNET and THE CLIENT make any form of contact.
Labor: is defined as the time spent and applied to THE CLIENT matters. Time is applied at the quarter hour, 15 minute, increments, rounded up to the nearest quarter hour. The term Time and the term Labor are used interchangeably.
Material: is defined as a good or service. Material can also be called a Charge or Expense. Material may or may not be billable to THE CLIENT.
Quote: is the digital, paper, or verbal collection of Time and/or Material presented to the client for purpose of purchase consideration. Quotes are NOT Invoices and Invoices are NOT Quotes. All Quotes default to the Standard Time and Material Contract unless explicitly specified.
Invoice: is the aggregate of listed Billing Items extended to THE CLIENT. It will have a date of issuance, due date, and other elements to describe to THE CLIENT what money is owed and for what reason.
Post (Billing): is the process of passing Labor, Material, or any billing item through the accounting process. Posted Items impact the profit and loss position of the relationship by and between THE CLIENT and EVERNET. Only posted billing items will generate an invoice to THE CLIENT.
Contracts: are the billing configuration(s) set by EVERNET for the client. The term Contract, and Agreement are used interchangeably.
Ticket: A Ticket is the primary vehicle in which service is performed on behalf of THE CLIENT. Tickets contain billable labor, Materials, Charges, Expenses, etc.
Project: A Project is very similar in behavior to a Ticket but contains more robust management and billing components. Like a Ticket, a Project contains billable labor, Materials, Charges, Expenses, etc.
Resource: a resource is an employee, subcontractor, or otherwise human resource under the management and sale of EVERNET, made available to THE CLIENT. Each Resource is assigned a Role within the organization.
Role: a Role is a predefined capacity and title assigned to Resources within EVERNET. Roles are assigned billing rates and applied to Contracts.
Service Level Agreement (SLA): is a declaration from EVERNET, agreed by THE CLIENT, as to what is and is not included in a given contract.
Confidential Information: means any non-public information of the parties hereto relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to, and received by, the other party pursuant to the Agreement. Confidential Information includes, but is not limited to, the terms and pricing of the Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information.
PRODUCTS AND SERVICES
During the Term of this Agreement, EVERNET will provide its Products and Services to THE CLIENT in accordance with the provisions herein. The Products or Services to be performed, fees and other specific information shall be more fully described in the type of engagement mutually agreed by the parties. In case EVERNET purchases any parts, computers, servers, equipment or third party services, THE CLIENT agrees to reimburse EVERNET for such expenses, pursuant to the invoicing terms.
THE CLIENT may have more than one Contract. All clients are held to at least one default engagement. Where no Contract exists, a Default Time and Material (T&M) Contract will apply.
TIME AND MATERIALS: A Time and Materials (“T&M”) Contract is the most common form and default engagement whereby THE CLIENT agrees to compensate, remit, reimburse, etc EVERNET for labor performed and Materials, Charges, Expenses, etc. incurred, used, required, purchased, etc by THE CLIENT. EVERNET may provide a Quote for goods or services to seek approval of THE CLIENT, but THE CLIENT agrees that such a Quote and decision may not be possible in all occasions. THE CLIENT agrees to compensate, remit, reimburse, purchase, etc. any goods, services, expenses, etc. that EVERNET invoices or presents to THE CLIENT regardless of prenotice, Quote, etc.
RETAINER: A Retainer Contract is an engagement whereby THE CLIENT has agreed to prepay a sum of money to EVERNET for a specified amount of money to be applied to labor. The value of the Retainer is only redeemable towards labor. Labor is performed according to the Contract Hourly Billing Rate detailed in the Retainer Summary Agreement. When the Retainer is depleted, labor will be performed according to the Role Hourly Billing Rate detailed in the Retainer Summary Agreement. While the Retainer Summary Agreement may indicate the choice of THE CLIENT is to suspend service upon depletion of the retainer, EVERNET will not refuse service to THE CLIENT if that request is in conflict with the Retainer Summary Agreement. THE CLIENT agrees to remit for services they request and be held according to the applicable rate.
BLOCK HOUR: A Block Hour Contract is an engagement whereby THE CLIENT has agreed to prepay a sum of money to EVERNET for a specified number of labor hours. The value of the Block Hour is only redeemable towards labor. Labor is performed and Block Hours are consumed by Roles according to the Block Hour Multiplier detailed within the Block Hour Summary Agreement.
FIXED PRICE: A Fixed Price Contract is an engagement whereby the client has agreed to purchase time and or material for a fixed sum of money according to a Quote. The Quote will define itself as a Fixed Price Contract. The billing items of a Fixed Price Contract may exist as Milestones.
RECURRING SERVICE: A Recurring Service Contract is an engagement whereby THE CLIENT has agreed to pay a recurring fee for recurring service(s). Recurring Services may be presented to THE CLIENT on a Quote where the description of service, price, term, etc is detailed.
The Term of this Agreement is valid until it is superseded by itself. Each Service shall have a minimum Service term, which begins on the Billing Commencement Date ("BCD") and continues for the period as both are set forth in the relevant agreement.
PAYMENT AND INVOICING
THE CLIENT will pay all applicable rates and fees set forth in the relevant agreement. All invoices are due for payment 30 days after their issuance unless otherwise specified in the invoice. Any payments not received by the Due Date will be past due and subject to interest at the littlest of 1.5% of the monthly invoiced amount or the highest rate permitted by applicable law, whichever is higher.
The following is the Posting and Billing schedule for contract types:
Time & Materials:
Labor, Materials, Charges, Expenses, etc which accrue every two weeks will be posted and invoices will be generated on the 1st and 15th of every month.
Labor is posted immediately. For labor hours which apply to a valid Retainer Purchase, labor will be billed according to the CONTRACT HOURLY BILLING RATE detailed within the Retainer Summary Agreement. For labor hours which exceed the available funds within a retainer, labor will be billed according to the ROLE HOURLY BILLING RATE. New or additional Retainer Purchases may be purchased according to the PURCHASING OPTION of the Retainer Summary Agreement. Labor, Materials, Charges, Expenses, etc which accrue every two weeks will be posted and invoices will be generated on the 1st and 15th of every month.
Labor is posted immediately. For labor hours which apply to a valid Block Purchase, labor will billed according to the BLOCK HOUR MULTIPLIER detailed within the Block Hour Summary Agreement and will appear as a $0 or “Pre-Paid” amount. For labor hours which exceed available hours within a block, labor will be billed according to the ROLE HOURLY BILLING RATE for OVERAGES detailed within the Block Hour Summary Agreement. New or additional blocks may be purchased according to the PURCHASING OPTION of the Block Hour Summary Agreement. Labor, Materials, Charges, Expenses, etc which accrue every two weeks will be posted and invoices will be generated on the 1st and 15th of every month.
Invoices for Fixed Price Quotes, Contracts, and Projects will occur according to completed Billing Milestones, a predetermined schedule set forth by and between THE CLIENT and EVERNET, or at the discretion of EVERNET.
Labor is posted immediately. Services, Service Bundles, Materials, Charges, Expenses, etc which accrue every month will be posted and invoices will be generated on the 1st of every month. Services are invoiced the month after they are provided. Services generally have an Item Date of the first of the month in which they were provided; the invoice for that service will be the first of the following month.
EVERNET may require, prior to ordering, procuring, or delivering material, services, labor, etc, a payment, deposit, or otherwise satisfactory remittance for any reason.
DEFAULT ROLE RATE SCHEDULE
The parties agree that the following Role Rate Schedule will apply to any labor and regulate any agreement or engagement entered by and between them unless where an explicit agreement exists:
ROLE RATE SCHEDULE
ROLE HOURLY BILLING RATE
Senior Business Consultant
|Level 3 Technician||
Level 2 Technician
Level 1 Technician
To Be Determined
*After Hours 1.25% x Rate *Emergency 1.50% x Rate
After Hours is labor billed outside EVERNET’s normal business hours. Normal business hours are Monday through Friday, 9am to 5pm.
An emergency is the most immediate response EVERNET is able to provide to THE CLIENT whether by remote or in person. An emergency is established at the request of THE CLIENT at any time or, if, in the absence of a request by THE CLIENT, EVERNET believes action is in the best welfare of THE CLIENT.
THE CLIENT may be assessed travel fees including but not limited to round trip distance billed per mile and or time billed by a resource for the duration of the travel.
EVERNET AS A RESELLER
EVERNET is a reseller of products, services and materials. If materials are purchased by EVERNET for resale to THE CLIENT, THE CLIENT agrees to be bound by those terms EVERNET is subject to by the entity through which EVERNET made the original purchase, which may include the payment of a restocking fee or handling fee. This includes but is not limited to return policies, so that if THE CLIENT desires to make a return of such materials, they may only do so if permitted by the original distributor.
EVERNET will not give to THE CLIENT any guarantee for such resale products, services and materials. In addition, EVERNET will not accept any return of such resale products, services and materials.
EVERNET AS INDEPENDENT CONTRACTOR
It is understood that EVERNET is acting as an independent contractor and not as an employee of THE CLIENT’S business in providing the services set forth in this agreement. EVERNET has the sole discretion to retain qualified subcontractors, third parties, or vendors to provide additional services required to complete work under this contract. THE CLIENT hereby authorizes EVERNET to act as an agent of THE CLIENT to engage in relationships where monetary payment may be necessary for reimbursement to said subcontractors, third parties or vendors by THE CLIENT. THE CLIENT authorizes EVERNET to act as an agent with THE CLIENT to facilitate relationships and necessary services. EVERNET is not responsible for, and THE CLIENT releases EVERNET and its employees and members from, any liability or damage caused by subcontractors, third parties or vendors.
EVERNET may act as an authorized agent of THE CLIENT in order to successfully complete the delivery of products or services.
THE CLIENT understands that delivery of any service may involve use of software owned by EVERNET or third parties (“Software”) under license agreements with EVERNET. THE CLIENT shall not cause or permit reverse engineering, disassembly or recompilation of any software provided by EVERNET. Title to software provided by EVERNET shall not pass to THE CLIENT. THE CLIENT agrees to abide by all other terms governing use of such software. EVERNET makes no representations or guarantees whatsoever with regard to such third party software. THE CLIENT acknowledges that certain Software and technical data to be provided hereunder and certain transactions hereunder may be subject to export controls under the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions. THE CLIENT shall not export or re-export any such items or any direct product thereof or undertake any transaction or service in violation of any such laws or regulations.
If the service provided by EVERNET includes access to or the use of equipment or software provided by EVERNET or its licensors ("EVERNET Equipment") that will be located at a THE CLIENT premises or other non-EVERNET location ("THE CLIENT Site"), THE CLIENT shall: (a) at its expense, provide secure, suitable space and power supply as necessary for the installation and operation of EVERNET Equipment; (b) ensure that EVERNET, its agents and subcontractors have appropriate access to enable EVERNET to install, maintain and disconnect the EVERNET Equipment; (c) not, nor permit others to, move, modify, or attempt to repair the services or EVERNET Equipment or interfere with the maintenance thereof; (d) not assert any ownership interest whatsoever in EVERNET Equipment and shall keep EVERNET Equipment free and clear from all liens, claims and encumbrances; (e) use all EVERNET Equipment in accordance with the AGREEMENT (f) bear the entire risk of loss or damage to the EVERNET Equipment at THE CLIENT Sites; and (g) upon any termination of the applicable service, provide all necessary cooperation to allow EVERNET to remove EVERNET Equipment.
Recurring Contracts containing Services or Bundles will begin on the first of the month and partial months will be billed for the first and last months of service. Billing for services will be effective the date of installation, configuration, or reasonable discretion by EVERNET. THE CLIENT or EVERNET may terminate Recurring Services at any time barring any obligation due to a vendor or other binding agreement.
Monitoring Recurring Services provided by EVERNET include monitoring criteria, metrics, data, etc. that is reasonably able to be monitored and reported to EVERNET. Monitoring services provided by EVERNET does not guarantee a reduction or preemptive resolution to issues or losses sustained by THE CLIENT. THE CLIENT hereby agrees that monitoring services are not an implied guarantee of protection or elimination of faults. THE CLIENT acknowledges and agrees that monitoring services are only intended to make reasonable attempts to actively monitor systems where able. THE CLIENT agrees that EVERNET will monitor these systems according to its available resources and means. THE CLIENT accepts any response or none at all, by EVERNET for a monitoring event or alert. THE CLIENT agrees and acknowledges that the monitoring service applies directly to the described service subscribed to by THE CLIENT and any question to the scope lies with EVERNET’s discretion. EVERNET at its discretion may monitor services of THE CLIENT without notice. THE CLIENT must explicitly request an opt out of its service sending monitoring data to EVERNET. THE CLIENT must expliclty request receipt of montiroing related alerts.
Management Recurring Services provided by EVERENT include monitoring recurring services in addition to reasonable management functions where the nature of the system is not significantly supported, repaired, installed, upgraded, or reassigned. In addition it includes the installation of routine patches, updates, fixes, and security updates (“Patches”) as they are installed successfully and ably from the corresponding vendor or manufacturer. Manual installation of patches is included where EVERNET is made aware of the necessity and availbilty of said patch. The installation of patches is not guaranteed either in time or reliability. EVERNET is not responsible for patches that are not installed, not able to be installed, or where the installation results in damage to the system. THE CLIENT agrees and acknowledges that the management service applies directly to the described service subscribed to by THE CLIENT and any question to the scope lies with EVERNET’s discretion.
Support Recurring Services provided by EVERNET include support, repair, installation, upgrade, reassignment, etc. as intended by the Original Equipment Manufacturer (OEM). THE CLIENT agrees and acknowledges that the support service applies directly to the described service subscribed to by THE CLIENT and any question to the scope lies with EVERNET’s discretion. Support Recurring Service includes the corresponding management service where applicable and at EVERNET’s discretion.
Security Recurring Services whereby the nature of the service is security by EVERNET includes antivirus, anti-malware, anti-spam, firewall, filtering, scanning, etc. THE CLIENT agrees and acknowledges that security services are not a guaranteed protection. THE CLIENT agrees and acknowledges that EVERNET is not liable for any failings by security services to protect THE CLIENT. THE CLIENT agrees and acknowledges that the security service applies directly to the described service subscribed to by THE CLIENT and any question to the scope lies with EVERNET’s discretion.
In the event that THE CLIENT engages EVERNET to provide services with respect to security of THE CLIENT’s network or data, THE CLIENT will remain liable for the security of THE CLIENT’s network and data. THE CLIENT acknowledges that the services endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. THE CLIENT should consider any particular service as just one tool to be used as part of an overall security strategy and not a guarantee of security. In no event will EVERNET be liable for any damages resulting from security breaches regarding THE CLIENT’S network or data.
EVERNET shall use reasonable efforts to make available to THE CLIENT at all times the server and the services but shall not, in any event, be liable for interruptions of service or down-time.
THE CLIENT will be responsible for backup and other protection of its data against loss, damage, or destruction. EVERNET will have no obligation or liability with respect to lost, damaged, or destroyed data.
THE CLIENT acknowledges that EVERNET is not responsible for the security of the contents of e-mail sent or received by THE CLIENT. EVERNET is not liable for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system.
EVERNET recommendations are made to improve THE CLIENT’s functionality, reliability, security, etc. and are given based upon EVERNET’s industry knowledge. Should EVERNET not deliver a recommendation or THE CLIENT decide not to implement EVERNET recommendations, THE CLIENT acknowledges that EVERNET shall not be liable in any way for the impact related to such failure to implement or provide such recommendations.
Except for the warranty expressly set forth herein, the services and any related products, software and other materials provided by EVERNET in connection with the services, are provided without any warranties or representations of any kind, whether statutory, express or implied, including but not limited to, warranties of title, non-infringement, merchantability, fitness for a particular purpose, accuracy, completeness or any results to be achieved therefrom. EVERNET makes no warranties or representations concerning the compatibility of software or equipment or any results to be achieved therefrom or that any service will be free from loss or liability arising out of any third party technology, any third party action such as hacking, or any act or omission of THE CLIENT, including failure to encrypt, and EVERNET shall have no responsibility therefore.
Any imposed liability extending to THE CLIENT from outside parties stops with THE CLIENT and does not extend to EVERNET. Therefore, EVERNET assumes no liability on behalf of THE CLIENT and THE CLIENT indemnifies EVERNET of such exposure.
EVERNET is not liable for damage or perceived damage to THE CLIENT as consequence of direct or indirect products or services provided by EVERNET or the lack thereof. THE CLIENT accepts that EVERNET perpetually acts in the best interest of THE CLIENT and releases EVERNET of any liability that may result in losses or perceived losses.
EVERNET shall not be liable for, and THE CLIENT shall not make any claim for any indirect, incidental, special, consequential, punitive, or exemplary damages (even if EVERNET has been advised of the possibility of such damages), including without limitation, any lost or imputed profits or revenues, lost data, damages to software of firmware, or cost of procuring or transitioning to substitute services
THE CLIENT will indemnify, defend and hold EVERNET and its suppliers harmless from any and all third party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorney’s fees and court costs, or liabilities arising from or related to the use or resale of any product or service provided by EVERNET.
In case THE CLIENT decides to terminate the AGREEMENT, for any reason, such termination will not relieve THE CLIENT’s duty to pay for the products delivered, services actually performed, or expenses incurred pursuant to any existent engagement between the parties.
EVERNET may suspend any of the services or terminate the AGREEMENT in the following situations:
- Immediately upon an overdue invoice;
- Upon notice in the event of any violation of the provisions of the present AGREEMENT;
- If THE CLIENT becomes insolvent, makes an assignment for the benefit of creditors, or if any bankruptcy proceeding is begun by or against THE CLIENT.
- In the event that it ceases to make such Service available.
In addition, EVERNET may terminate the AGREEMENT at its own discretion. THE CLIENT may terminate the AGREEMENT by written notice of discontinued use of EVERNET’s products and services. THE CLIENT must make EVERNET aware that the engagement by and between the parties has been concluded. EVERNET will make every reasonable attempt to cancel products and services but THE CLIENT will be held responsible for any billing valid until EVERNET furnishes a Notice of Separation or similarly indicated notice where applicable.
Neither party shall, without the prior written consent of the other party, use or disclose the Confidential Information (as defined above) of the other party during the Term of this AGREEMENT and for 2 years following the expiration or termination hereof. Each party will take all reasonable precautions to protect the other party's Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information. Notwithstanding the foregoing, a party may disclose Confidential Information: (i) to any consultants, contractors, and counsel who have a need to know in connection with this AGREEMENT.
Nothing in the AGREEMENT or the performance thereof shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property or other proprietary rights held by either party or its licensors. EVERNET intellectual property and proprietary rights include any skills, know-how, modifications or other enhancements developed or acquired in the course of configuring, providing, or managing the Service. Each party agrees that it will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology of the other party or its licensors.
The parties may subscribe to subordinate agreements to the present AGREEMENT in order to specify the terms and conditions of the products or services to be provided by EVERNET to THE CLIENT. Such agreements could consist of, but not limited to, Service Level Agreements (SLA), Retainer Agreements (RA), Recurring Services Agreements (RSA), Managed Services Agreements (MSA), Block Hours Agreements (BHA), Fixed Price Agreements (FPA), etc.
The provisions contained in this AGREEMENT will regulate any subordinate agreements entered by and between the parties.
This AGREEMENT shall be governed by and construed in accordance with the laws of the State of Connecticut and subject to the courts of Hartford, Connecticut, without regard to its principles for resolving conflicts of law. The parties agree that the substantive laws of the State of Connecticut shall govern the existence, validity, and interpretation of this AGREEMENT, without regard to choice of law principles
Any conflict that may arise between EVERNET and THE CLIENT which might require mediation, arbitration, litigation, etc. shall occur in or about the Hartford, Connecticut county. THE CLIENT agrees that this is for the convenience of EVERNET and acknowledges that their place of business or where the nature of the relationship occurred has no bearing on the agreed location for conflict resolution. THE CLIENT agrees to use any venue requested, initiated, etc by EVERNET.
The content of this agreement was read by both parties and make them aware of the legal scope and effect thereof.