This is an Agreement between you ("Client") and CreaTech Innovations LLC, ("Company"), for the purpose of providing managed Network and IT services.
"You" and "yours" refer to "Client" and "we", "us" and "our" refer to "Company".
Network refers to the Client's computer Network and all devices connected to Client’s Network.
WHEREAS, Company provides Information Technology Services, Support and Maintenance to its clients, and
WHEREAS, Client desires to enter into an agreement with Company to purchase said
support, services and maintenance.
WHEREAS, Company desires to perform such services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein
contained, it is agreed by and between the parties as follows:
General Conditions of Service
The Client's computing environment is eligible for monitoring and support under this Agreement provided it is in good condition and Company's serviceability requirements/standards and site environmental conditions are met. Company reserves the right to inspect the computing environment upon the commencement of this agreement for the purpose of creating a diagram of the Network and/or conducting a diagnostic test of the Network. Unless stated otherwise, said inspection shall be charged against the Account using our standard hourly billing rates if no other rates are specified in the Agreement.
Company shall not be responsible to Client for loss of use of the Network or for any other liabilities arising from alterations, additions, adjustments or repairs which have been made to the Network other than by authorized representatives of Company.
Company reserves the right to suspend or terminate this Agreement if in its sole discretion, conditions at the service site pose a health or safety threat to any Company representative.
It is the responsibility of Client to promptly notify Company of any events/incidents that could impact the services defined within this agreement and/or any supplemental service needs, and for Company to respond in a timely manner via phone, email, remote access, and/or on-site services as defined in the Sales Order.
If services are requested by the Client outside of normal business hours, Company shall provide such service subject to the availability of its representatives, according to the terms and conditions set forth in this Agreement.
Company shall monitor, advise, and provide supplemental services as defined in the Sales Order and Agreement during business hours, unless otherwise specified in the Sales Order, and in accordance with Company’s Network policies then in effect. Company shall provide scheduled remote and onsite support services in accordance with this agreement. Company’s representatives shall have and the Client shall provide full access to the Network in order to effect the necessary monitoring and/or supplemental services. All services defined in this Agreement shall be provided during regular business hours, unless otherwise specified in the Service Order.
Company shall be obligated to provide service only at the locations defined in the Sales Order. If the Client desires to relocate, add or remove locations, the Client shall give appropriate notice to Company of its intention to relocate sixty (60) days in advance. Company reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by the Client. Such right includes the right to refuse service to Network at the relocation and/or new site.
Company reserves the right to refuse or suspend service under this Agreement in the event Client has failed to pay any invoice within thirty (30) days of said invoice date, whether it be an invoice for services provided under this Agreement or any other agreement between the parties. Suspension or cancellation of service does not relieve the client of their obligation to pay for the remainder of any applicable Committed Service Term.
Devices Covered
Company reserves the right to renegotiate rates based on additions of locations, hardware, software, support requirements, and/or services as well as modify this Agreement (or any portion thereof) with a 30-day notice.
For purposes of this Agreement, the Network shall include all locations and devices as outlined in the Sales Order. Any additional devices added to the network without the consent or acknowledgement of Company will not be honored or supported by Company under this agreement. Please review this agreement from time to time so that you will be apprised of any changes.
Datto Managed Network Equipment
Service Subscription Required. To maintain managed networking services, each Datto Networking Device must be registered and enrolled in a Service Subscription for which we receive timely payments. All Service Subscriptions include licenses to the technology needed to perform and manage networking functions as well as access to Technical Support.
Registration. You are required to register each device with us in order to use the Products and Services. During registration, you agree to provide accurate and complete information, and you further agree to promptly update this information should it change. If a device is not properly registered and in a current paid Service Subscription we have no obligation to allow access to or use of the device, nor to provide any related Services.
Term Length. The term of the Committed Service Term is indicated on the applicable Sales Order. A term is either for one month (a Monthly Term) or for a defined number of consecutive months (a Committed Service Term). Certain Products and/or hardware discounts may be available only when purchased with a Committed Service Term. Each individual piece of Datto Managed Network Hardware requires an independent Committed Service Term. Activation of new hardware during the current Committed Service Term will result in a new Service Subscription being established for that individual piece of hardware equal to the length of the original Committed Service Term noted in the Sales Order. After the expiration of the initial Committed Service Term for the new hardware, the Committed Service Term will run consecutively with the then current Committed Service Term.
A Service Subscription shall commence on the "Activation Date". Except for purchases of a Datto Networking Edge Router, the Activation Date for a Monthly Term (and the associated payment obligation) shall be the date you register a Product with Datto. The Activation Date for (i) any Committed Service Term or (ii) a purchase of a Datto Networking Edge Router on a Monthly Term (and the associated payment obligation) shall be the earlier of (a) the date you register a Product with Datto and (b) the date that is sixty (60) days following the date of purchase. If your purchase involves a Product that includes a physical device, the purchase date for the purposes of this Section shall be the shipment date of the Product.
Renewals. The term of a Service Subscription for a Monthly Term or a Committed Service Term will automatically renew for a term equal to the original Committed Service Term unless terminated by providing Company with written notice of cancellation. For a Monthly Term, notice of cancellation must be received by Company no later than thirty (30) calendar days prior to the effective month of cancellation. For a Committed Term, notice of cancellation must be received by Company no later than forty-five (45) calendar days prior to the effective month of cancellation.
Payment Terms. Monthly Service Subscription fees are set forth in the applicable Sales Order. Service Subscription fees will be due and payable commencing on the first day of the month following the Activation Date (defined above), and are billed monthly in advance on the first day of the month. In the first month following the Activation Date, an additional bill will be generated covering the period from the Activation Date through the end of that month. Monthly payments for a Service Subscription is due on the twenty-eighth of each month prior for the service period of the following month.
You may also choose to prepay a Service Subscription. In the event of termination of a prepaid Service Subscription, no refund for unused Service will be given unless otherwise agreed in writing.
You agree to pay Service Subscription fees for the entire Committed Service Term, if applicable. If you terminate Service at any time during a Committed Service Term, a lump sum payment (equal to 100% of the monthly unpaid Service Subscription fee times the number of months remaining in the Committed Service Term less any amounts already prepaid) will be due immediately and charged to your preferred payment method.
Datto or Company may terminate any Service Subscription at its discretion, effective immediately, for non-payment that is not substantially cured within thirty (30) days after your receipt of written notice. Termination of service does not relieve you of your responsibility to pay for the remainder of the Committed Service Term.
Client understands that even should Client cancel services and request the switch or removal of the Datto system, that Client is still liable and responsible for all the fees associated with the Datto Network plan for the full Committed Service Term herein. Should Client cause any change or cancelation to Datto prior to the end of the Committed Service Term, Client acknowledges and understands that Client will be liable for the fees associated with Datto herein for the full Committed Service Term. Client agrees that in order for the network to work, Client must pay the licensing fees and agrees to do so.
Charges for Service Delivery
Services shall be charged against the Account in accordance with the terms and conditions as outlined in the Sales Order. Any supplemental services provided by Company which are outside the terms of this Agreement, including but not limited to, any maintenance provided beyond normal business hours and services in excess of the Account purchased herein, shall be charged to Client as an additional charge in accordance with the terms and conditions as outlined in the Sales Order. Any additional billing charges will be invoiced at the end of each month, with payment expected within thirty (30) days, unless otherwise specified by Company.
Client shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the services provided pursuant to this Agreement. Without limiting the foregoing, Client shall promptly pay to Company an amount equal to any such taxes actually paid or required to be collected or paid by Company.
Service Limitations
In addition to other limitations and conditions set forth in this Agreement and Sales Order, the following service and support limitations are expressed:
Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this agreement. Company will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
Except as otherwise stated in the Agreement or Sales Order the following are outside the scope of this Agreement: Remediation of any kind; Restorations from backups or server rebuilds are not part of the remediation and fix (For example: Exchange database is corrupt, restoration of the database, exchange database reached maximum size and requires offline defragmentation, restoration of mailboxes.); Requests that require more than 60 minutes to complete (requests exceeding 60 minutes will be considered project requests and charged additionally); ISP coordination for server / site down; Network Device and Software upgrades; Any installation, repair or virus scanning on more than three machines would be considered a project and not included; Operating system reinstalls or re-imaging; Restoring backup files or configuring backup devices; Problems occurring in applications or devices not on the supported software and hardware list; Creation or modification of File Permissions or Group Policy; Setup of new devices including workstations, servers, laptops or peripherals; New or existing Network or other infrastructure setups; No onsite support is included in the offering of this service. All onsite visits will be billed at an additional fee; SharePoint administration including setup or modification of SharePoint website permissions or structure; network device troubleshooting; Phone hardware or VoIP telephony; Data transfers or migrations greater than 1GB in size; file restorations or recovery.
Manufacturer warranty parts and labor/services are outside the scope of this agreement.
Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. Company’s support services within this agreement are predicated upon the Client’s support and commitment to providing time/scheduling for network device reboots with its staff and/or users support. Devices that are not available during the assigned maintenance window will be rescheduled for the next cycle.
Application software support is limited to the products listed in supported software and hardware list: Printer maintenance support is limited to non-warranty servicing of printer products listed in Sales Order.
Virus mitigation within the scope of this agreement is predicated on Client satisfying recommended backup schemes and having appropriate Anti Virus Software with current updates.
Restoration of lost data caused by systems/hardware failure is outside the scope of this agreement.
This agreement and support services herein are contingent on Client’s permission of Company having secure remote access into Client's network (eg. VPN, Citrix/Terminal Server, Telnet, SSH, RAS or other solution expressly approved by Company). Depending on the remote access solution used, additional charges may apply to the contract. If Company is unable to access any device on Client’s network, Client will assist and cooperate to allow Company to gain access. Client hereby gives express consent to Company to access its network and computers remotely so as to provide the services herein.
Support services required or requested outside the scope of this agreement may not be exchanged for days or services within this agreement. Outside of scope support services are available and will be provided on either a Time and Material, or Project basis
Help desk requests are not intended as training, consulting, design or implementation services. Those services will be considered project based and billed at an additional fee.
Failures caused by viruses, malware, and ransomware, user abuse or environmental conditions are outside the scope of this agreement. Remediation for these issues will be considered project based and be billed at an additional fee.
Client Responsibilities
Client shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by Company's representatives.
Client agrees that it will inform Company of any modification, installation, or service performed on the Network by individuals not employed or contracted by Company in order to assist Company in providing an efficient and effective Network support response time.
Client will designate a managerial level representative to authorize all Network Support Services. Whenever possible, said representative shall be present whenever a Company's service representative is onsite. This contact information shall be outlined in Sales Order, and it is the Client’s responsibility to inform Company of any changes made to this representation thirty (30) days in advance.
Client agrees that a maintenance window must be established and honored to allow for proper system maintenance, patching and reboots. Unless otherwise specified, Company will use our standard maintenance windows.
Warranties and Disclaimers
Company makes and the Client receives no warranty, express or implied, and all warranties of merchantability and fitness for a particular purpose are expressly excluded. In no event shall Company or any of its Directors, Employees or Other Representatives be liable for any special, incidental, indirect, or consequential damages of any kind including, without limitations, those resulting from loss of data, income, profit, and on any theory of liability, arising out of or in connection with the services or use thereof even if it has been advised or has knowledge of the possibility of such damages. Under no circumstances shall Company be liable to Client for any failure on the part of third party vendors including but not limited to software vendors providing services to CreaTech Innovations LLC that may cause damage of some nature to client.
The Client shall assume full responsibility for the overall effectiveness and efficiency of the operating environment in which the Network is to function.
Hold Harmless
Client agrees to hold harmless Company from any third party attacks or breaches into Client’s system from the use of remote access to perform Company’s services under this Agreement. Client acknowledges and accepts that remote access to service Client’s IT needs comes with natural risks that Client alone accepts responsibility for. Company shall not be held liable for any breaches of information due to the remote access to perform their services. Client further agrees to hold harmless Company from any liabilities or losses due to failure of systems such as, but not limited to, antivirus software not detecting malware or backup failures. Client agrees and acknowledges that the failures of such systems are outside of the control of Company and therefore shall not hold Company liable for any breaches or losses for those failures.
Indemnification
Client hereby agrees to indemnify and defend at its sole expense: Company, its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon Client's use of all services, software or hardware provided or serviced hereunder, including, but not limited to, claims based on software licensing violations, copyright infringement, trademark infringement and patent infringement. In addition, Client agrees to pay any judgment and costs associated with such claim.
Opt-Out/Termination
Company and/or Client shall have the right to terminate this Agreement under any of the following conditions:
If one of the parties shall be declared insolvent or bankrupt.
If a petition is filed in any court and not dismissed in ninety (90) days to declare one of the parties bankrupt and/or for a reorganization under the Bankruptcy Law or any similar statute.
If a Trustee in Bankruptcy or a Receiver or similar entity is appointed for one of the parties.
If the Client does not pay Company within thirty (30) days from receipt of Company's invoice and/or otherwise materially breaches this Agreement.
If Company fails to perform its obligations under this Agreement and such failure continues for a period of thirty days after written notice of the default, the Client shall have the right to terminate this Agreement. Committed Service Terms for Datto Networking Products will survive this termination and Client is still responsible for 100% of the remaining Committed Service Term.
Company may terminate this Agreement for any reason upon thirty (30) days written notice to Client.
Client must notify Company of their intent to terminate this agreement in writing no later than sixty (60) days prior to the expiration of the current Committed Service Term. Notices must be mailed to the address here: Contact Information.
Upon termination, all hardware and software installed by Company that was required to conduct network support services are the property of Company and will be surrendered and returned to Company at the end of the agreement. Additionally, in the event of termination of this agreement by Client, Client agrees to pay the Service Subscription fees for the entire Committed Service Term, if applicable. If Client terminate Service at any time during a Committed Service Term, a lump sum payment (equal to 100% of the monthly unpaid Service Subscription fee times the number of months remaining in the Committed Service Term less any amounts already prepaid) will be due immediately and charged to Client’s preferred payment method.
Non-Hire/Non-Disclosure
Because employees and contractors are one of our most valuable assets, policy and professional ethics require that our employees and contractors not seek employment with, or be offered employment by any Client during the course of engagement and for period of one (1) year thereafter. Your acceptance of this agreement confirms Client’s agreement to adhere to this professional standard of conduct.
Client acknowledges that Company is involved in a highly strategic and competitive business. Client further acknowledges that Client would gain substantial benefit and that Company would be deprived of such benefit, if Client were to directly hire any personnel employed or contracted by Company except as otherwise provided by law, Client shall not, without the prior written consent of Company, solicit the employment of Company's personnel during the term of this Agreement and for a period of one (1) year following expiration of this Agreement.
Client agrees that Company's damages resulting from breach by Client of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event Client violates this provision, Client shall immediately pay Company an amount equal to 60% of employee’s total annual compensation, as liquidated damages and Company shall have the option to terminate this Agreement without further notice or liability to Client. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs Company would incur to identify, recruit, hire and train suitable replacements for such personnel.
This Confidentiality, Privacy and Compliance portion of this Agreement is in addition to other terms and conditions set forth in any and all contracts currently existing or hereafter created between Client and Company this agreement shall under no circumstances be deemed to alter any such contract except as specifically provided below.
Company acknowledges that in the course of providing services to Client, Company may learn from Client certain non-public personal and otherwise confidential information relating to Client, including its customers, consumers or employees. Company shall regard any and all information it receives which in any way relates or pertains to Client, including its customers, consumers or employees as confidential.
Company shall take commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose other than purposes which serve Client or as expressly and specifically permitted in writing by Client or as required by applicable law.
Client acknowledges that it also has responsibility to keep records and information of its business, customers, consumers, and employees, confidential.
Client also acknowledges that all information and services, consulting techniques, proposals, and documents disclosed by Company or which comes to its attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary to Company. This provision shall survive termination of this Agreement and any other agreements between Client & Company.
Insurance
Company shall maintain at its sole expense commercial general liability insurance for personal injury and property damage for a general aggregate of $2,000,000; Professional Liability insurance (AKA Errors & Omissions Liability insurance) for a general aggregate of $1,000,000; worker's compensation insurance as required by law; and hired and non-owned automobile liability insurance for the combined single limit of $1,000,000. At Client’s request, Company further agrees to furnish Client with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by Client.
General Provisions
Severability. If a court of competent jurisdiction determines that any terms or provision of this Agreement is invalid or unenforceable; such determination shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement, which shall continue to be given full force and effect.
Captions. The captions of the paragraphs of this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement or any of the provisions hereof.
Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their heirs, legal representatives, personal representatives, administrators, successors, and permitted assigns, as the case may be.
Waiver. Any failure of either party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions shall not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failure.
Force Majeure. Company shall not be liable for any problems due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, improper shut down of the Network and related Network Systems/Services.
Attorneys' Fees. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover all expenses, including reasonable attorneys' fees.
Assignability. Company shall have the right to assign this agreement to any other person, firm or corporation without notice to Client and shall have the further right to subcontract any services which it may perform. Client acknowledges that this agreement, and particularly those paragraphs relating to Company’s maximum liability, liquidated damages, and the third party indemnification, inure to the benefit of and are applicable to any assignees, subcontractors of Company, and the work they perform, and that they bind Client with respect to said assignees, subcontractors, with the same force and effect as they bind Client to Company. Client shall have the right to assign this agreement to any other person, firm or corporation with the prior written consent of Company which shall not reasonably be withheld.
Liquidated Damages And Limitation of Liability. Client agrees that even if a court decides that a failure of monitoring, diagnostic or other support software, or Company's negligence, or a failure of repair service caused or allowed any harm or damage (whether loss of data, property damage, personal injury or death) to Client or anyone on Client’s premises, Client agrees that Company’s maximum aggregate liability shall be limited to $250.00, as liquidated damages and not as a penalty, and this shall be Client’s only remedy regardless of what legal theory is used to determine that Company was liable for the injury, loss or death.
Third Party Indemnification. In the event any person not a party to this agreement, shall make a claim or file a lawsuit against Company for any reason relating to our duties and obligations pursuant to this agreement, you agree to indemnify defend and hold harmless Company, its agents, successors, assigns and employees.
Notices. Any notices to be given under this Agreement by either party to the other may be effected either by personal delivery in writing or by registered or certified mail, with postage prepaid and with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing on the Sales Order. However, each party may change the address for receipt of notice by giving written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated at the time of delivery. Mailed notices will be deemed communicated two days after mailing.
Entire Agreement. This Agreement supersedes any and all agreements, both oral and written, between the parties, and contains all of the covenants and agreements between the parties with respect to the rendering of these services in any manner whatsoever. Each party acknowledges that no representations, inducements, promises, or agreements, written or oral, have been made by either party, or by anyone acting on behalf of either party, that are not embodied in this Agreement. Any modification of this Agreement will be effective only if it is in a writing signed by the party to be charged.
Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
Governing Law. This agreement will be governed by and construed in accordance with the laws of the State of Ohio and the parties hereto agree that for any and all dispute resolution or litigation the venue shall be Clinton County, Ohio.
Counterpart Execution. This agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document.
Execution by Facsimile or by Electronic Signature. This agreement may be executed by facsimile or by electronic signature in a format approved by the parties and shall be deemed an original, but all of which together shall constitute one and the same document.
All terms and conditions at https://createch.link/legal may be updated, changed or amended with thirty (30) days notice as business conditions or needs change. If Client disagrees with the changes Client may terminate the managed services portion of this agreement by providing written notice within thirty (30) days. Cancelation shall only apply to managed services provided by CreaTech Innovations LLC and Client shall still be responsible for all Datto Networking Services for the original Committed Service Term unless Datto agrees to release the customer from their obligation. If no written notice is received by the Client within thirty days, the amended service terms will be considered accepted by the Client.