Terms and Conditions

  1. Confidentiality:  During the term of this Agreement, and thereafter in perpetuity, neither party shall without the prior written consent of the other, disclose to anyone any Confidential Information of the other. “Confidential Information” for the purposes of this Agreement shall include each party’s proprietary and confidential information such as, but not limited to, customer lists, business plans, marketing plans, financial information, designs, drawing, specifications, models, software, source codes, and object codes. Confidential Information shall not include any information that client makes publicly available or information which becomes publicly available through no act of ICS or Client or is rightfully received by either party from a third party.

     

  2. Client and ICS both agree they will not solicit for hire or otherwise engage any of each other’s employees or contractors, either directly or indirectly during any period services are provided under this agreement.

     

  3. Force Majeure: Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of ICS’s technical staff (collectively referred to herein as “Force Majeure”).  Each party shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.

     

  4. ICS shall not be liable to Client or any of its affiliates for any damages, whether incidental, direct, indirect, special, consequential, or punitive or exemplary damages arising out of service or equipment provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, or loss to person or property, costs of substitute equipment or other costs even if ICS has been advised of the possibility of such damages.  Regardless of the form of action, ICS’s cumulative liability shall be only for loss or damage directly attributable to negligence of an ICS employee or contractor, for the cost of restoring the network to its condition prior to the negligence, but not to exceed thirty thousand dollars.  If a collection action is initiated by either party or if ICS must defend any action by Client, ICS is entitled to its reasonable attorney fees and expenses to be paid by Client. 

     

  5. Implied Warranties are expressly disclaimed by ICS.  An ICS contractor is a technician or contractor who operates on behalf of ICS, is paid by ICS, and has access to ICS’s service ticket management system for making time entries and charges for their work.  ICS is not responsible for the acts of other technicians, contractors or consultants providing service to Client not under its control and direction.  If Client purchases equipment from ICS, it understands and agrees that it will look to the manufacturer for all remedies and warranties and agrees that ICS is not responsible for functioning of the equipment and has not made any express or implied warranties.  ICS shall not be liable for any claim or demand against the Client by any third party on account of errors or omissions performed hereunder.

     

  6. Remote access to personal computers and/or networks:   If or when Client transitions to home or alternative networks, ICS will make best effort to make connections and serviceability.  However, home, or alternative networks may not have adequate internet connectivity and equipment to effectively operate.  ICS is not responsible for inadequacies in home or alternative networks or to secure those connections. Home equipment will not be as secure and may not have ICS’s software and security features.  ICS is not responsible for the security of the home or alternative networks.  Work on a home or alternative network unless otherwise included is outside the scope of this Agreement and ICS may charge its then hourly rate for work on home or alternative networks.  ICS will charge for additional software installed at home or alternative networks as needed.

     

  7. In the event of a Force Majeure ICS is not required to have technicians work during periods or at places where their safety or health could be in jeopardy and in any event will not require technicians to go on site.

     

  8. Client agrees to carry liability insurance and property insurance covering any damage to its network as well as to any clients of the Client adversely affected by Client’s network functioning or transmissions from its network.

     

  9. ICS may apply changes or additional terms, conditions, and provisions to this Agreement upon 30 days advance written notice to client containing the proposed addition or change.  If the additions or changes are not objected to then they shall take effect at the end of the 30 days.  Within the 30 days Client may submit changes or objections to the proposed changes or additional terms.  If the parties do not agree on the change or addition, then it shall not become part of the Agreement.  All the terms, conditions and provisions of this Agreement will continue to apply during any renewal term.

     

  10. Failure to pay: If payment is not received by the first of the month for that month of service ICS reserves the right to put a hold on rendering on-site and remote services until monthly fee has been paid.

     

  11. It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials provided by ICS. Client shall pay any such taxes unless a valid exemption certificate is furnished to ICS for the jurisdiction of use, except in cases when ICS procures or sources the incorrect equipment and / or software and / or support services any incorrect items or software shall be returned to ICS.

     

  12. If Client fails to make payment for any services or items purchased, and such failure continues for thirty days a 5% late penalty shall apply.  Subsequently, interest shall accrue on any amount due at the rate of 12% per annum until paid.  In the event collection processes are instituted to collect any amounts due from Client, Client shall pay the costs of collection plus reasonable attorney fees.  This Agreement will automatically renew for successive 36-month terms (or other mutually agreed renewal term) unless at least 90 days prior to the expiration of each such term, either party notifies the other party in writing of non-renewal.

     

  13. This Agreement is fully assignable by ICS with prior written consent of client, which may not be unreasonably withheld.  Immediately upon assignment the assignee’s name, address and contact information shall be provided to the other party. This Agreement shall be fully binding and enforceable as against all permitted assignees and successors in interest.  Client may terminate this agreement with a 60-day notice in a month-to-month status.

     

  14. Termination:  Early termination will result in a Termination Fee equal to the amount of monthly Managed Services Fee in this agreement times the number of months remaining and payment of all past and currently due amounts together with late fees and costs.

     

    1. Cancellation by Customer Prior to Installation: If Customer cancels or terminates an order within forty-five (45) days prior to the installation of services, Customer shall pay to ICS the following: (i) all actual out of pocket expenses; and (ii) all reasonable and actual costs incurred by ICS in connection with such order, including, without limitation, installation and other reasonable and actual costs incurred with third parties and/or service providers with respect to such cancelled service and labor costs for work performed by ICS employees with respect to such order.

 

  1. Cancellation by Customer without Cause: The pricing for ICS Managed Services is based upon Customer’s commitment to obtain the services for the agreed upon term of the Agreement. If Customer terminates all or any part of the services obtained under the Agreement prior to the expiration of the Initial Term for any reason other than Cause (as set forth in the following Section (c), then, in addition to ICS’s other rights and remedies available at law or in equity, Customer shall be liable for liquidated damages, and not as a penalty, in an amount equal to the sum of the months remaining in the term times the monthly recurring contract rate.  If Customer terminates the Agreement without Cause during a Renewal Term, the liquidated damages shall be the sum of three months of the contract rate beyond the termination notice date..  ICS shall be entitled to the reasonable cost of collection of the foregoing amounts. In the event any legal action is initiated by one party to enforce its rights under the Agreement or these Terms and Conditions, the non-prevailing party shall be liable for the costs associated with such legal action including, without limitation, court costs and reasonable actual attorneys’ fees incurred by the prevailing party.

     

  2. Cancellation by Customer with Cause: In the event ICS fails to substantially cure any default or failure of performance within thirty (30) days after ICS’s receipt of Customer’s written notice describing with reasonable specificity of such alleged default or failure of performance, Customer may terminate for Cause by giving ICS a sixty (60) day written notice of termination.  However, ICS’s obligation to perform services is limited to actions which are reasonably in the control of ICS.  The purpose for the sixty (60) day notice is to allow sufficient time for ICS to work with Customer to transfer the management of services back to Customer.  Customer will be responsible for payment in full to ICS for all hardware furnished as part of the managed services agreement if Customer fails to return such hardware.  ICS reserves the right to reject any Customer termination request received from any person other than an authorized Customer contact person or Partner/Owner of Customer.  Authorized customer contact will be provided to ICS during initial on-boarding call. 

 

  1. Cancellation by ICS: ICS may terminate the Agreement at any time without cause and for ICS’s convenience by providing Customer ninety (90) days’ prior written notice of such termination. Additionally, upon the longer of (i) such notice as is required by the governing, regulatory body or (ii) thirty (30) days after Customer’s receipt of ICS’s written notice, ICS may refuse, terminate, discontinue or limit the use of service (either temporarily or permanently) to Customer or withhold the provision of ordered or contracted service, without liability of ICS to Customer, (a) if any balance owed by Customer to ICS is past due, (b) if Customer exceeds its pre-established credit limit and does not cure within the applicable notice period after receipt of such notice, which such notice may be by mail, fax or email, (c) when necessitated by conditions beyond ICS’s reasonable control, (d) for violation by Customer of any of the provisions contained in the Agreement or these Terms and Conditions (e) for violation by Customer of any law, rule, regulation or policy of any governing authority having jurisdiction over the service; or (f) by reason of any order or decision of a court, public service commission or federal regulatory body or other governing authority prohibiting ICS from furnishing the service. In addition, ICS may immediately and without notice terminate and/or block services without incurring liability to Customer for the following reasons: (i) fraud committed by Customer or a User of Customer’s Service; (ii) if Customer refuses to furnish information or furnishes false information essential for billing by ICS; (iii) Customer indicates that Customer will not reasonably comply with a reasonable request from ICS for security for the payment of services. Customer’s service may be subject to suspension and/or disconnect if full payment has not been received from Customer within thirty (30) days following the statement date. If service is suspended by ICS and later restored, restoration of service will be subject to applicable reconnection fees, and Customer agrees to pay such fees. If service is disconnected by ICS and later re-installed, re-installation of service will be subject to all applicable installation charges, and Customer agrees to pay such charges if Customer was responsible for such re-installation having to be performed. In the event ICS permanently terminates service to Customer under this Section (e), the Agreement and these Terms and Conditions shall terminate. If such termination is a result of (a), (b), (d) or (e) or (i) through (iii) of this Section (e), Customer shall be liable for all liquidated damages set forth in Section (c) of these Terms and Conditions for all the services terminated under this Section (e).

     

  2. Final Invoice: Upon termination of the Agreement, ICS shall forward a final invoice to Customer, and such invoice will include, without limitation, all unpaid charges (including, without limitation, recurring charges) incurred and or paid on behalf of the Customer by ICS, including all applicable liquidated damages up to the effective date services are completely transferred back to the Customer.

 

  1. ICS Contact Information for Cancellation: Customer shall use the following addresses for cancellation and/or disconnect requests only:

     

By email: please email request to: [email protected]; or By US Mail, please mail request to: 

ICS

Attention:  Billing

251 W. Main Ave.

Gastonia, NC  28052

 

  1. Dispute Resolution: All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration unless they are of an amount which can be handled within the small claims court of the jurisdiction of the ICS.  The parties agree they waive the right to bring a lawsuit based on such claims or disputes other than in small claims court.  Before commencing any arbitration proceedings, the aggrieved party must first present the claim or dispute in writing to the other party.  The parties shall have 30 days to resolve the claim or dispute.  If not resolved, then the aggrieved party may commence arbitration proceedings. The arbitration shall be conducted by Arbitration Resolution Services, Inc. (ARS) or other mutually agreed upon dispute resolution service and the parties shall be bound by all rules of the American Arbitration Associations United States Commercial Resolution Dispute Resolution Procedures for Consumer–Related Disputes.   Any decision or award because of any such arbitration proceeding shall be in writing and shall provide an explanation for all decisions.  Arbitration shall be conducted by an arbitrator experienced in Information Technology services and experience required for arbitrator and shall include a written record of the arbitration hearing. An award of arbitration may be converted to judgment in a Court of competent jurisdiction.  The location of arbitration shall be in the home city, county of ICS.  The fees and expenses of the arbitrator and proceedings shall be paid by the losing party. 

     

  2. This Agreement and any amendments and its validity, construction and performance shall be governed by the laws of North Carolina.  Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in the county and state of the ICS, and the parties agree and consent to such jurisdiction and venue.

     

  3. This Agreement does not create any rights in any third parties.

     

  4. Client shall not modify, create any derivative work of, or incorporate any other software into the computer software programs or any portion thereof apart from allowing automatic updates to commence or confirming the installation of an automatically scheduled update or fully supported software for which client has purchased technical support and has scheduled such installation with ICS.  Programs must be installed by an ICS technician or software technical support with an ICS technician assisting. ICS shall not be responsible for maintenance of or for repair of errors or malfunctions occasioned by any installation, modification or enhancement to the Programs made by Client or by anyone other than ICS unless ICS has agreed.  Corrections of unauthorized modifications shall be at the rate of $139 per hour and may be grounds for immediate termination by ICS of this Managed Services Agreement.  Client agrees to prohibit others, including its principals, officers, and employees from installing hardware, working on the technical aspects of the operating systems on the Servers and PC’s or to give anyone Domain Administrator access. Only ICS will make administrative or technical changes to the servers.