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, drawings, specifications, models, software, source codes, and object codes. Confidential Information shall not include any information that the client makes publicly available or information which becomes publicly available through no act of ESS or Client or is rightfully received by either party from a third party.
2. Client and ESS agree not to solicit for hire and not to 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 or in the 24-month period immediately following termination of 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 MSP’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. If not in the same geographical area, a Force Majeure event may occur in either or both geographical locations to cause failure or delay in the performance of the obligations.
4. If the Client’s work is substantially changed due to a Force Majeure, ESS will evaluate the need to change IT services to the Client and related change of managed service fees. Recognizing there are ongoing expenses to MSP of maintaining backups, remote monitoring, other vendor support software/licensing, and availability of technicians to service ongoing needs, MSP will review with the Client the need for change of fees, if any. Changes of fees due to a Force Majeure will be negotiated and signed into effect by an addendum to this document.
5. ESS shall not be liable to Client or any of its affiliates for any damages, whether incidental, direct, indirect, special, consequential, or punitive 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 ESS has been advised of the possibility of such damages. Regardless of the form of action, ESS’s cumulative liability shall be only for loss or damage directly attributable to the negligence of an ESS 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 either party initiates a collection action or if ESS has to defend any action by Client, ESS is entitled to its reasonable attorney fees and expenses to be paid by Client.
6. ESS expressly disclaims Implied Warranties. An ESS contractor is a technician or contractor who operates on behalf of ESS, is paid by ESS and has access to ESS’s service ticket management system for making time entries and charges for their work. ESS 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 ESS, it understands and agrees that it will look to the manufacturer for all remedies and warranties and agrees that ESS is not responsible for the functioning of the equipment and has not made any express or implied warranties. ESS shall not be liable for any claim or demand against the Client by any third party for errors or omissions performed hereunder.
7. Remote access to personal computers and/or networks. ESS will try to make connections and serviceability if or when the Client transitions to home or alternative networks. However, home or alternative networks may not have adequate internet connectivity and equipment to work effectively. ESS is not responsible for inadequacies in those homes or alternative networks or securing those connections. Home equipment will not be as secure and may not have ESS’s software and security features. ESS is not responsible for the security of the home or alternative networks. Unless otherwise included, work on a home or alternative network is outside this Agreement’s scope, and ESS may charge its then hourly rate for work on home or alternative networks. ESS will charge for additional software installed at home or alternative networks as needed.
8. In the event of a Force Majeure, ESS is not required to have technicians work during periods or at places where their safety or health could be in jeopardy and will not require technicians to go on site.
9. The client agrees to carry liability and property insurance covering any damage to its network and to any clients adversely affected by the Client’s network functioning or transmissions from its network.
10. ESS may apply changes or additional terms, conditions, and provisions to this Agreement upon 30 days advance written notice to the client containing the proposed addition or change. If the additions or changes are not objected to, 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, 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. Both parties agree to negotiate in good faith rates that are mutually agreed upon under any renewed contractual service term effective at the end of the initial term.
11. Failure to pay: Payment for hardware, software, or other items that require full payment before release to ESS or Client has a net 15 terms. Payment for services, software, or subscriptions has a net of 30 terms. If payment is late, ESS reserves the right to withhold equipment, software, and/or services until payment has been received. ESS may work with the Client to set up installments or monthly payments for equipment, software, licenses, or services. However, if these cannot fully be refunded through return, rescind, or revoke, the Client is liable for the full cost regardless of termination of other services with ESS. ESS will give notice of late payment. Failure to provide payment within 15 days of the notification can result in action by ESS to collect payment through all legal means available.
12. It is understood that any applicable Federal, State, or Local Taxes shall be added to each invoice for services or materials provided by ESS. The client shall pay any such taxes unless a valid exemption certificate is furnished to ESS for the jurisdiction of use. Except in cases when ESS procures or sources incorrect equipment, software, and/or support services, any incorrect items or software shall be returned to ESS.
13. Travel expenses may be incurred during the implementation or continued maintenance for the project or in the course of meeting on-site service needs. ESS charges for travel time via car at the applicable on-site service rate. Other types of travel would include the applicable service rate as well as the cost of travel. In addition, if lodging is necessary to provide multiple days of onsite work, the Client will be billed at the room rate plus fees and taxes to cover lodging expenses for the duration. ESS reserves the right to acquire lodging for any project at any distance from office location; however, it is mandated for geographical locations exceeding 1.5 hours of travel from the office location (as determined by Google Maps).
14. If Client fails to make payment for any services or items purchased, and such failure continues for fifteen days, 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.
15. ESS can fully assign this Agreement. 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 against all permitted assignees and successors in interest.
16. Termination of Agreement: Where applicable, as defined by the proposal for the Client to receive managed services, this Agreement shall be effective for one calendar year from the date designated or date of signature if no date is designated. The Agreement shall automatically renew without notification unless terminated by either the Client or ESS under the terms outlined herein.
a. Termination by Client: Client may terminate this Agreement with or without cause by providing written notification 60 days before the auto-renew date. Failure to notify ESS in a timely manner may result in the renewal of licenses which would require full payment by the Client even if the Agreement is terminated. Payment of all past and currently due amounts together with late fees and costs, unless the client has a valid reason to withhold payment on incomplete tasks, work orders, or faulty equipment and provided ESS, was notified in a service ticket within 10 days of the original occurrence of any incomplete tasks, work orders and/or faulty equipment which it itemized with sufficient detail to identify the problem. That amount may be withheld until the incomplete tasks, work orders, or equipment issues are resolved. ESS shall be given a reasonable opportunity to correct any problems. Any such election shall be made in writing by Notice of Termination and is to be accompanied by all amounts due.
b. Termination by ESS: ESS may choose to terminate this Agreement at any time with or without cause if there is notification 60 days before the termination of services. Upon giving notice to the Client, ESS will work with the Client to develop a transition plan to move subscriptions and/or licenses to another provider. ESS will recommend a Managed Service Provider (MSP) if the Client does not have another option available within the 60-day time frame. ESS will continue to provide services during the 60-day period unless the Client fails to pay during that time frame.
c. Termination by death or dissolution: In the event that a death, buyout, or other form of transfer of entity occurs to cause the dissolution of ESS or the Client, ESS will reduce the notification period to 30 days and work with the Client to develop a transition plan to a new MSP if needed. Equipment, software, licenses, or services that cannot fully be refunded through return, rescind, or revoke will still incur payment by the Client, regardless of the reason for dissolution.
17. Terms of Termination:
a. Any of the following that remains un-dismissed for a period of sixty (60) days: If the Client files protection under the federal bankruptcy laws or if a third party commences a bankruptcy petition or petition for receiver against the Client.
b. Failure of the Client to comply with its obligations in this Agreement after written notice by ESS of the non-compliance and failure to correct the problem or acknowledge the problem and commitment to take corrective action in the future.
c. Backups: Where applicable, as defined by the proposal for the Client to receive backup support or services, backups will be handled in the following way in the event of a termination of the Agreement. Client shall be responsible for transferring backups to a system administered by Client or others on its behalf and for paying any costs of transferring and/or setting up backups off of the system maintained by ESS. If the Client does not provide for any transfer of backups, they shall be terminated within 30 days of the Notice of Termination or Notice of Default. Client assumes all responsibility for its backups, and ESS is not obligated to retain them. In the event before the end of the 30 days, the client places its own backups on-site or obtains its own cloud backups, then it shall notify ESS, so its backups can be terminated.
d. In the event of default or termination under any circumstances Client agrees it will provide access to ESS technicians to remove applicable licenses and monitoring tools. The consequence of and failure to provide this access shall be that Client shall continue to be responsible for 50% of the monthly Managed Services payment amount until access is allowed and the licenses and tools removed. Where applicable spam filtering will be terminated upon default or termination. Client understands that it is entirely responsible to redirect all of Client’s MX records away from the spam filter system and redirect email to its server or it must provide ESS access to its network information and equipment to take those steps. Upon termination of spam filtering services, email will bounce if the Client has not taken these steps or requested and allowed ESS to take those measures. The client understands the above and accepts this responsibility and the consequences if it fails to cooperate or act. The Client acknowledges that upon the termination of the spam filtering, email will not be available if these steps are not allowed or taken, and there is no recourse to ESS.
e. In the event of termination by either party, the Client is responsible for the full amount of all payments for services provided and products ordered.
f. If either party terminates the relationship between ESS and the client or if the Client defaults, then the parties agree to work cooperatively to transfer the client’s data and network information as directed by the client to another service provider or the client. The client will pay the cost of transfer which will include hourly charges of technicians to accomplish the transfer and any services maintained by ESS containing Client data. The client must designate a vendor to handle its email, backups, and any other services provided by ESS. The client must establish an account for transferring the backups and any other services within 30 days of notice of termination or default. ESS has no responsibility for backups, email, or other services beyond 30 days following termination or default under this Agreement.
g. In the event of either party terminating services for any reason, upon written request by the Client, ESS will provide up to 60 days of support to allow the Client to make a transition, provided the Client pays all amounts then due and pays the fee for the additional 60 days in advance.
18. Modifications to the Agreement: Where applicable, as defined by the proposal for the Client to receive managed services, this Agreement shall be effective for one calendar year from the date designated or date of signature if no date is designated. The Agreement shall automatically renew without notification unless terminated by either the Client or ESS under the terms outlined herein. The Agreement need not be terminated to make modifications to increase or decrease the amount paid for monthly services in the event of an increased or reduced number of users or added services, software, or licenses to an existing Agreement so long as the number of users and/or services remains greater than zero. An addendum may be used to change the rate with a description of changes to cause a rate change.
19. 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 that can be handled within the small claims court of the jurisdiction of the ESS. 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 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 any and all rules of the American Arbitration Associations United States Commercial Resolution Dispute Resolution Procedures for Consumer–Related Disputes. Any decision or award resulting from any such arbitration proceeding shall be in writing and provide an explanation for all decisions. The arbitration shall be conducted by an arbitrator experienced in Information Technology services and experience required for the arbitrator and shall include a written record of the arbitration hearing. An arbitration award may be converted to judgment in a Court of competent jurisdiction. The location of arbitration shall be in the home city, county of ESS. The fees and expenses of the arbitrator and proceedings shall be paid by the losing party.
20. This Agreement and any amendments, as well as its validity, construction, and performance, shall be governed by the laws of Pennsylvania. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in the county and state of ESS, and the parties agree and consent to such jurisdiction and venue.
21. This Agreement does not create any rights for any third parties.
22. Client shall not modify, create any derivative work of, or incorporate any other software into the computer software programs or any portion thereof with the exception of 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 ESS. Programs must be installed by an ESS technician or software technical support with an ESS technician assisting. ESS shall not be responsible for maintenance or repair of errors or malfunctions occasioned by any installation, modification, or enhancement to the Programs made by Client or anyone other than ESS unless ESS has agreed. Corrections of unauthorized modifications shall be at the on-site service rate applicable at the time of repair, and action by Client may be grounds for immediate termination by ESS of this 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 PCs, or giving anyone Domain Administrator access. Only ESS will make administrative or technical changes to the servers.
Last updated: 3/7/2025