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Last Updated: 2021

Terms & Conditions: Managed Services

1. Applicability.  

These terms and conditions for services (these"Terms") are the only terms that govern the provision of services by Tekscape Inc. ("Tekscape") to Customer and apply to Customer's use of the services and equipment provided by Tekscape, as well as Customer's access to the Tekscape website (the "Website"). The accompanying OrderConfirmation, Statement of Work, or Managed Services Agreement, as applicable, and pricing summary (the "Proposal") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Proposal, these Terms shall govern, unless the Proposal expressly states that the terms and conditions of the Proposal shall control.  By signing theProposal, Customer agrees to be bound by these Terms. These Terms prevail over any of Customer's general terms and conditions regardless whether or whenCustomer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any ofCustomer's terms and conditions and does not serve to modify or amend theseTerms.

2. Recurring Monthly Fees.  

The recurring monthly fee for managed services and support is determined by multiplying the per-endpoint charges shown above in the Purchase Order by the number of each type of endpoint that is in use on the Customer's network (or in the Customer's locations supported by Tekscape in the event the Customer has multiple locations not all supported by Tekscape). The signed agreement quantity and dollar amount is the floor for the basis of billing and discount extended for the term. Tekscape secures resources and contracts based on the signed quantity floor described above. Should the qty of endpoints increase the invoice will increase based on the associated sku multiplied by the cost per sku in quoting section. The monthly invoice amount for the term will not decrease below the calculated amount which is identified at execution of this agreement.

(a) By signing this proposal, theCustomer agrees to pay the minimum commitment throughout the initial contract term as specified in this Proposal (the "Initial Service Term"),unless canceled within the terms below. The commitment minimum threshold is equivalent to the original agreed upon total specified in the Purchase Order.Should the quantity of endpoints in the Customer's office (or supported offices) increase, the recurring monthly fee per item will be adjusted to reflect the increase automatically while always respecting the minimum commitment.

3. Services.

Subject to Section 4, Tekscape shall provide the services to Customer as described in the Proposal (the "Services") in accordance with theseTerms.  Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written public comments made by Tekscape with respect to future functionality or features.

4. PerformanceDates.

Tekscape shall use reasonable efforts to meet any performance dates specified in the Proposal, and any such dates shall be estimates only.

5. Customer's Obligations. Customer shall:

(a) Cooperate with Tekscape in all matters relating to the Services and provide such access to Customer's premises, and such office accommodation and other facilities as may reasonably be requested by Tekscape, for the purposes of performing theServices;

(b) Respond promptly to any Tekscape request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Tekscape to perform Services in accordance with the requirements of this Agreement;

(c) Provide such customer materials or information as Tekscape may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects;

(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and

(e) designate a specific representative as the liaison authorized to act on its behalf to make decisions, and to provide approvals for drawings, reports, presentations and other documents and data.  Upon receipt of Customer's written decisions, approvals and authorizations, the Services to be provided by Tekscape shall be provided promptly in a manner designed to meet the schedules contained in the Proposal. Tekscape's services for a particular phase of theProposal shall commence only after Customer's written approval of the previous phase, and Customer's written authorization to proceed. Services will be provided in non-sequential phases only if requested by Customer

6. Customer'sActs or Omissions.

If Tekscape's performance of its obligations under thisAgreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Tekscape shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

7. ChangeOrders. 

(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Tekscape shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change;(ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of thisAgreement.

(b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed in writing.

(c) NotwithstandingSection 6(a) and Section 6(b), Tekscape may, from time to time change theServices without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Proposal.

(d) Tekscape may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Proposal.

8. Fees and Expenses; Payment Terms; Interest on Late Payments. 

(a) Inconsideration of the provision of the Services by the Tekscape and the rights granted to Customer under this Agreement, Customer shall pay the fees set for thin the Proposal.  Any additional consulting services performed beyond the scope of the Proposal shall be invoiced on the basis of pre-determined billing rates included as a Professional Services Rates Table to the Proposal and the hours actually expended, or on the basis of a mutually agreed upon fixed fee.

(b)Except as otherwise set forth in this Agreement, Tekscape shall be responsible for all costs and expenses incident to completing the Services and shall provide its own supplies and equipment.Customer agrees to reimburse Tekscape for all reasonable travel and out-of-pocket expenses incurred by Tekscape in connection with the performance of the Services approved in advance by Customer. Expenses include, but are not limited to charges for printing, reproduction, reproducibles, telecommunications, data communications, facsimile, long distance telephone calls, travel outside of local city limits, out-of-town living expenses, shipping, delivery and messenger service.

(c) Customer shall pay all invoiced amounts due to Tekscape within 30 days from the date of Tekscape's invoice in US dollars by wire transfer, credit card, or check, together with any processing fees.

(d) In the event payments are not received by Tekscape within 30 days after becoming due, Tekscape may: (i) charge interest on any such unpaid amounts at a rate of1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.

9. Taxes.

Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.

10. IntellectualProperty.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Tekscape in the course of performing the Services, including any items identified as such in theProposal (collectively, the "Deliverables"), except for anyConfidential Information of Customer or customer materials, shall be owned by Tekscape. Tekscape hereby grants Customer a license to use all IntellectualProperty Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non sub-licensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of theDeliverables and the Services.

11. ConfidentialInformation.

All non-public, confidential or proprietary information of Tekscape, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"),disclosed by Tekscape to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Tekscape. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on anon-confidential basis from a third party. Customer agrees to use theConfidential Information only to make use of the Services and Deliverables. Tekscape shall be entitled to injunctive relief for any violation of thisSection.

12. Non-Solicitation.

Unless otherwise agreed to in writing, both parties agree that during the Term of this Agreement and for a period of one (1) year immediately following the termination or expiration of this Agreement for any reason, each party agrees not to solicit or induce any employee, affiliate, or subcontractor to terminate or breach an employment, contractual or other relationship with such party

13. Representation and Warranty. 

(a) Tekscape represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

(b) Tekscape shall not be liable for a breach of the warranty set forth in Section 13(a)unless Customer gives written notice of the defective Services, reasonably described, to Tekscape within 10 days of the time when Customer discovers or ought to have discovered that the Services were defective.

(c) Subject to Section 13(b), Tekscape shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.

(d) THE REMEDIES SET FORTH IN SECTION 13(c) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 13(a).

14. Disclaimer of Warranties.

EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 13(A) ABOVE, TEKSCAPE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, OR ANY PRODUCT MANUFACTURED BY A THIRD PARTY THAT MAY CONSTITUTE, CONTAIN, BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO OR PACKAGED TOGETHER WITH, THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.  Tekscape does not warrant: (i) that the Services will meet the Customer's requirements, (ii) that the operation of the Services will be uninterrupted or error-free; or (iii) that all errors in the Service scan be corrected.

15. Consent to Recording. 

In the event the Services include monitoring of incidents on a 24-hour, 7-day a week basis through audio and video recording components, then Customer consents to the installation of such components at its premises and will take all steps necessary to alert individuals at its premises of recording by audio and video. Certain federal and state laws prohibit interception and recording of audio and video communications by electronic means, including the interception and recording of audio and video communications by Tekscape's recording components at Customer's premises.  Customer further consents to the interception, recording, disclosure and use of the contents of any audio or video communications in connection with the Services. Customer shall also notify all individuals at its premises with respect to any such interception, recording, disclosure or use.  The monitoring services are solely to identify incidents related to the Services to be provided, which may be through real-time access to the audio and video recording components or through storage and retrieval of recorded audio and video stored on Tekscape's servers, which storage shall be limited and subject to change in Tekscape's discretion.  The monitoring services are not intended: (i) to reduce or eliminate any risk of loss, (ii) as an insurance policy, (iii) to replace alarm monitoring services, or (iv) to detect or prevent unauthorized activity on the Customer's premises or any other emergency condition.  The monitoring services are provided and shall be used only for the identification of incidents related to the Services and no other purpose.

16. Limitation of Liability. 

(a) INNO EVENT SHALL TEKSCAPE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FORANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) INNO EVENT SHALL TEKSCAPE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE PROPOSAL IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

17. Term.  

The Services are offered for the initial contract term specified in the Proposal(the "Initial Service Term"). Following the Initial Service Term,Services shall automatically renew for additional terms equal to the InitialService Term, or any other term mutually agreed by the parties in the Proposal(each, a "Renewal Term") unless and until either party notifies the other party in writing no earlier than sixty (60) days and no later than thirty(30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services.  The Initial Service Term and any Renewal Term will be collectively referred to as the "Term".

18. Termination.

(a) Tekscape may terminate this Agreement with immediate effect upon written notice toCustomer, if Customer: (i) fails to pay any amount when due under thisAgreement and such failure continues for 30 days after Customer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  If this Agreement is terminated by Tekscape under this subsection, Tekscape shall be entitled to retain all Fees paid to date, including those Fees for Services paid in advance but not yet performed

(b) If Customer wishes to terminate any Services under this Agreement prior to the expiration of the Term, Customer must notify Tekscape in writing, no less than30 days prior, and shall pay an early termination fee of the greater of (i)eighty percent (80%) of the highest amount billed in any month during the Term multiplied by the remaining months in the Term; or (ii) the last month's billed amount multiplied by the remaining months in the Term.  The parties agree that this early termination fee is a reasonable estimate of anticipated actual damages and not a penalty.

19. Insurance.

During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Tekscape's request, Customer shall provide Tekscape with a certificate of insurance fromCustomer's insurer evidencing the insurance coverage specified in these Terms.Customer shall provide Tekscape with 30 days' advance written notice in the event of a cancellation or material change in Customer's insurance policy.Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Tekscape's insurers and Tekscape.

20. Waiver.

No waiver by Tekscape of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Tekscape. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof.No single or partial exercise of any right, remedy, power or privilege here under precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

21. Force Majeure.

Tekscape shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Tekscape including, without limitation, acts of God, flood, fire, earthquake, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Customer shall be entitled to give notice in writing to Tekscape to terminate this Agreement.

22. Assignment.

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Tekscape. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.  Tekscape may, without the consent of Customer, assign any of its rights or delegate any of its obligations under thisAgreement without any prior consent if such assignment or delegation is to: (i)an affiliate of Tekscape; (ii) a successor of Tekscape, by consolidation, merger, or operation of law; (iii) a purchaser of all or substantially all of Tekscape's assets; or (iv) a lender of Tekscape as collateral.

23. IndependentContractors.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.  Customer is interested only in the results obtained here under; the manner and means of achieving the results are subject to Tekscape’s sole control.  Tekscape is an independent contractor for all purposes, without express or implied authority to bind Customer by contractor otherwise.

24. GoverningLaw.

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule(whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.

25. Submission to Jurisdiction.

Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of theUnited States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

26. Notices.

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, aNotice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

27. Severability.

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or un enforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

28. Survival.

Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of thisAgreement including, but not limited to, the following provisions: Taxes(Section 9), Intellectual Property (Section 10), Confidentiality (Section 11),Non-Solicitation (Section 12), Governing Law (Section 24), Survival (Section28), and Indemnification by Customer (Section 32).

29. Amendment and Modification.

This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

30. Subcontractors.  

Tekscape may, at Tekscape's own expense, employ engage such persons("subcontractors") as Tekscape deems necessary to complete theServices; provided that prior to employing or engaging such persons, Tekscape enters into written agreements with each, containing terms that are substantiallysimilar to those in this Agreement and all terms necessary for both Tekscapeand Tekscape’s subcontractors to comply with this Agreement, including but notlimited to, Confidentiality.  Customer may not control, direct, orsupervise the performance of Tekscape's subcontractors.  Tekscapeassumes full and sole responsibility for the payment of all compensation and expenses of Tekscape's subcontractors, and for any applicable all state andFederal and State income tax, unemployment insurance, Social Security, disability insurance, or and other applicable withholdings.

31. Resale.

Customer represents and warrants that it will be the end user of the Services.Customer shall not in any way resell, license or permit or suffer any third party to use the Services without receiving Tekscape's prior written consent, which consent may be withheld in Tekscape's sole and unreviewable discretion.

32. Indemnification by Customer.

Customer shall indemnify and hold harmless Tekscape, its directors, officers, employees, and agents against any loss, liability, damage or cost (including reasonable attorney's fees) ("Losses") incurred in connection with claims, demands, suits or proceedings ("Claims") made or brought against Tekscape by a third party arising from or relating to: (i)any act, error, omission, fault, negligence, or misconduct of Customer, its directors, officers, employees, or agents, or any user of the Service orEquipment; (ii) Customer's, or its directors, officers, employees, or agents, material breach of this Agreement; (iii) violation of any law or regulation byCustomer, its directors, officers, employees, or agents, or any user of theService; or (iv) any theory of product liability (including, without limitation,  actions in the form of tort, warranty or strictliability); except to the extent that such Losses result from (A) any material breach by Tekscape of its obligations under this Agreement, or (B) the gross negligence or intentional acts or omissions in connection with the work performed by or on behalf of Tekscape.  Tekscape will provideCustomer with written notice of the existence of any basis for indemnification and Tekscape will select its defense counsel. Customer will have the right to approve any settlement, but may not unreasonably withhold its approval.Customer agrees to indemnify Tekscape from all costs, expenses and liabilities as they become due.