1. Agreement. Techopoly and Client agree that this Managed Services Agreement (the “Agreement”) is a binding agreement and each further agrees to be bound by all Terms and Conditions contained herein.
2. Term and Termination. The Term of this Agreement shall be for a period of one (1) year. Techopoly and Client have the right to terminate this Agreement only as a result of a material breach of this Agreement. In such event, the breaching party will be given written notice of the breach and, if curable, the opportunity to cure the breach within thirty (30) days of the date of such notice. In the case of a non-curable breach, termination will become immediately effective. In the event the breaching party fails to cure the breach within the applicable period stated above, the non-breaching party has the right to terminate this Agreement upon written notice to the breaching party. Material breach includes Client’s obligation to pay invoices when due. All payments hereunder may be accelerated by Techopoly in the event of a non-payment of an invoice for more than thirty (30) days. In the event (i) an involuntary proceeding in bankruptcy is filed against a party which is not dismissed within sixty (60) days of filing, (ii) a voluntary proceeding in bankruptcy is filed by a party, or (iii) a party is dissolved or liquidated or makes any assignment for the benefit of creditors, then this Agreement may be terminated upon notice to such party by the other party.
3. Payment. Techopoly shall invoice Client monthly and Client agrees to pay all invoices within fifteen (15) days of the invoice date. In the event Client fails to make any payment when due, Client agrees to pay a late charge at the maximum rate allowed by Tennessee law. Client further agrees that Techopoly may cease performance under this Agreement until Techopoly receives payment for all unpaid invoices.
4. Access. Client agrees to provide Techopoly with physical access to its individual computer systems and networks in order for Techopoly to perform its services. Client also agrees that Techopoly may access its computer systems or networks via telephone, data line, Internet connection, or other means of communication, in order to perform services upon the systems or network.
5. Discretion. Techopoly may, at its option, engage subcontractors to perform under this Agreement, but in all instances Techopoly shall remain responsible for performance under this Agreement.
6. Independent Contractor. The parties to this Agreement intend to create the relationship of independent contractor, and Techopoly will not become, by reason of its performance under this Agreement, an agent or employee of Client, and no joint enterprise or partnership is intended by this Agreement.
7. Confidentiality. Techopoly and Client recognize and acknowledge that Techopoly may gain access to information through the performance of this Agreement which include, but are not limited to, clients, client lists, potential clients, financial information, software ideas, software development materials, vendors, suppliers, business procedures, devices or business methods (“Confidential Information”). Techopoly agrees during the term of this Agreement or following its termination not to disclose or make accessible to anyone, except as required by law, or make use of (other than in the regular course of the business of Techopoly) Confidential Information. Techopoly is not restricted from using, at any time during or after the termination of this Agreement, any information in the public domain, or any skill, or other knowledge not protected by the terms of this Agreement.
8. Nonsolicitation of Techopoly’s Employees and Contractors. Client recognizes and acknowledges that the relationship of Techopoly with its employees and independent contractors are of significant value to Techopoly. Client agrees not to directly or indirectly contact, solicit, approach or in any way attempt to influence any employee or independent contractor of Techopoly to resign or otherwise terminate employment or association with Techopoly during the term of this Agreement and for a period of one year following termination of this Agreement and any renewals thereof.
9. Compliance with Regulations. Techopoly shall comply with all applicable federal, state or local law, rule or regulation.
10. Records. Techopoly agrees to keep accurate and complete records of the services it performs for Client. These records shall be the property of Techopoly. These records will not include backups or copies of data from Client’s computer systems, unless necessary to perform services which are the subject of this Agreement. Techopoly shall not be responsible for restoring data lost by Client from Techopoly’s own records. Unless specifically set forth in the Services Package, Techopoly shall not provide backup services to Client. Client is encouraged to utilize either the backup services offered by Techsure or the backup services provided by a third party.
11. Developments of Techopoly. Client agrees that all software, programs, databases, and source code developed by Techopoly under this Agreement belong to Techopoly and Client shall not have rights in any such developments except through a separate agreement.
12. Warranty. Techopoly warrants that all services performed under this Agreement shall be done in a good and professional manner.
13. Temporary Files. Client agrees and understands that Techopoly deletes temporary internet files stored on Client’s computers and computer system. Techopoly is in no way liable for any lost passwords or other information due to Techopoly’s deletion of such files.
14. Limitation of Liability. Techopoly makes no other representations, warranties, or guaranties, whether express or implied, except for those set forth in this agreement. Client agrees that Techopoly will not be liable to client for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever arising out of this agreement, even if Techopoly was aware of the possibility of such damages, including but not limited to for loss of goodwill, work stoppage, loss of data, computer failure or malfunction, defects and vulnerabilities of third party products, damage caused by hackers, worms viruses, user error, client or its agents, and any other damage not due to the actions of Techopoly or its agents. Client agrees that Techopoly’s liability for monetary damages to client shall in no way exceed the amount paid by client to techopoly under this agreement. Client further agrees that in the event that Techopoly must remove equipment from client’s premises, Techopoly shall not be responsible for any harm or damage to such equipment, except where the damage was the result of Techopoly’s negligence, and client waives any damage claim in excess of the fair market value of the replacement cost of the damaged equipment and waives all claims for the value of lost data contained on such equipment.
15. Keys and Pass Codes. All keys to Client’s business and pass codes provided to Techopoly by Client are provided to Techopoly for Client’s benefit. Client agrees that Techopoly shall not be liable for any damage to or loss of personal property that is related to Techopoly’s use of any keys or pass codes.
16. Attorneys’ Fees. In the event of any arbitration or litigation arising out of this Agreement or if Techopoly must initiate collection procedures, Client shall pay Techopoly’s costs of collection, arbitration, or litigation, including any reasonable attorneys’ fees should Techopoly prevail.
17. Assignment and Governing Law. This Agreement and any rights under it may not be assigned by Client. However, Client agrees and acknowledges that in the event that a part or all of the ownership interest in the company is sold or transferred, this Agreement shall remain in full force and effect. The parties agree and consent that this Agreement shall be governed by the laws of the State of Tennessee and venue for all actions shall be in federal or state court located in Nashville, Tennessee.
18. Entirety. This Agreement is the entire agreement of the parties relating to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, correspondence, understandings, and agreements of the parties relating to the subject matter hereof.
19. Waiver and Severability. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. If any provision of this Agreement becomes or is deemed to be invalid, illegal or unenforceable, it shall be deleted and the remainder of the Agreement and the related documents pursuant hereto shall remain in full force and effect. In the event of a conflict between the provisions in the body of this Agreement and any attachments, the terms in the body of this Agreement will control.