THIS DOCUMENT DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH BECLOUD, LLC (“BECLOUD”) WILL PROVIDE I.T.TECHNICAL SUPPORT SERVICES TO YOU (THE “CUSTOMER”). IF YOU ARE A NEW BECLOUD CUSTOMER, YOUR ACCEPTANCE OF TECHNICAL SUPPORT SERVICES SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT AND ITS TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU. IF YOU ARE AN EXISTING BECLOUD CUSTOMER, YOUR CONTINUED RECEIPT OF TECHNICAL SUPPORT SERVICES FOLLOWING RECEIPT OF THIS AGREEMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF ITS TERMS AND CONDITIONS, AND, ACCORDINGLY, THEY WILL BE LEGALLY BINDING ON YOU. YOU AGREE AS FOLLOWS:
1.Services. BeCloud agrees to perform for Customer, on a non-exclusive, as-needed basis, (a) on-site labor for general PC maintenance, troubleshooting, repairs, upgrades and services on IBM compatible PC’s, (b) on-site labor for general server and network maintenance, troubleshooting, repairs, and upgrades, and (c) remote support to include phone support, software remote support and e-mail support (the “Services”).
2.Compensation. Customer shall pay to BeCloud, promptly after the receipt of each invoice from BeCloud, a fee for the Services provided, plus any additional charges reflected on the invoice (such as for equipment and/or software purchased by BeCloud for the benefit of Customer or additional services requested by Customer) based on the rates (and payment times) applicable to the support plan chosen by Customer. All such charges not paid to BeCloud within 30 days following the invoice date shall bear interest at the lesser of an annual rate of 8% or the maximum rate allowed by law. In the event Customer fails to make timely payment for any equipment delivered or installed by BeCloud, BeCloud shall have the right, without further notice to Customer, to remove such equipment from Customer’s premises and to dispose of such equipment in any manner deemed reasonable by BeCloud, but such removal and disposal shall not affect the obligation of Customer to pay the full amount due with respect to such equipment. The prices set forth in the support plan chosen by Customer do not include any sales, use, service, or similar taxes that may be payable by reason of the provision of the Services, and Customer will pay all such taxes which may become due in connection with the Services.
3.Termination. This Agreement shall commence on the date hereof and shall continue for the term set forth in the support plan chosen by Customer or until terminated by either party by written notice delivered to the other party. Upon any termination of this Agreement, BeCloud shall be entitled to the prompt payment for all Services (and any equipment or software purchased for or on behalf of Customer) provided pursuant to this Agreement through the date of termination.
4.Independent Contractor. Customer and BeCloud agree that BeCloud is an independent contractor for all purposes under this Agreement and shall in no way be considered to be an employee or agent of Customer. Customer shall not exercise control or direction over the manner or method by which BeCloud performs any Services that are the subject of this Agreement. BeCloud shall be solely responsible for its own acts and omissions under this Agreement; accordingly, all Services rendered by BeCloud for Customer shall be rendered in its capacity as an independent contractor. BeCloud shall be considered to be an independent contractor for purposes of all federal and state taxes, and BeCloud shall be responsible for payment of all taxes on amounts received pursuant to this Agreement. BeCloud shall be responsible for expenses incurred in connection with BeCloud’s provision of Services, except as expressly provided elsewhere in this Agreement. Neither BeCloud nor Customer shall contract any liability or obligation on behalf of the other or enter into any agreement for or on behalf of the other without the prior written consent of the other, and any such obligation or agreement made without the prior written consent of the other shall be void and unenforceable.
5.Premises, Equipment and Personnel. BeCloud shall provide at its expense the necessary personnel and tools to perform the Services. Customer shall provide BeCloud’s personnel adequate access to and space on its premises to perform the Services to be provided hereunder.
6.Responsibility for Software Licenses. In order to provide the Services contemplated by this Agreement, BeCloud will be authorized and directed by Customer to install, modify and/or manipulate software on Customer’s computer system(s), including software already installed on Customer’s computers or otherwise in Customer’s possession. Customer acknowledges that it has the sole legal responsibility for the ownership and/or rights to license and use all software used in its business. Customer represents and warrants to BeCloud that Customer has (and, for so long as this Agreement is in effect, will continue to have) valid licenses or other legal rights to use all of such software, without violating or infringing on the intellectual property rights of any other person or entity, and Customer agrees to indemnify and hold BeCloud harmless for any unauthorized installation or use of software on Customer’s system(s).
7.Intellectual property. All inventions, trade secrets, works of authorship and other intellectual property created by BeCloud in part or in whole during and in connection with its engagement with the Customer, using Customer resources and related to the actual or communicated prospective businesses or interests of the Customer, shall be owned exclusively by the Customer. BeCloud agrees to execute and deliver promptly, at the Customer’s sole expense, necessary assignments and other documents requested by the Customer to confirm the Customer’s ownership of such intellectual property. BeCloud hereby waives any and all moral rights it may have in such intellectual property. BeCloud agrees that any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information, conceived, discovered, made or developed by BeCloud, solely or jointly with others, after termination of this Agreement that are based solely on the Customer’s trade secrets or confidential information shall belong to the Customer and BeCloud hereby assigns any and all rights in such items to the Customer. Upon the Customer’s request, BeCloud promptly will disclose to the Customer all material inventions, trade secrets, works of authorship and other intellectual property created by BeCloud resulting from the Services. For sake of clarification, the Customer shall not own and shall have no rights to BeCloud’s likeness or use of BeCloud’s likeness arising under this Agreement, which likeness shall be exclusively owned by BeCloud.
8.Confidentiality. Customer and BeCloud each agree to maintain the confidentiality of the other’s proprietary and confidential information (“Confidential Information”). For purposes of this Agreement, Confidential Information means information in whatever form furnished by or on behalf of either party and designated as confidential by the furnishing party, including but not limited to business, strategic planning, financial, technical, trade secrets or other proprietary information, written or oral, acquired, shared, developed or provided under this Agreement. Confidential Information does not include information which is not designated confidential by the furnishing party or which the party receiving such information can demonstrate (i) is generally available to or known other than as a result of disclosure by such party, or (ii) was obtained by the party receiving such information from a source other than the party furnishing such information, provided that such source is not bound by a duty of confidentiality. Each party agrees not to use, disclose, distribute or allow access to such Confidential Information by any other person or organization, other than those who have a need to know of the information in order to perform their obligations under this Agreement. Nothing contained herein shall prevent either party from disclosing any Confidential Information of the other party to: (i) regulatory agencies, provided, however, that all reasonable steps are taken to maintain the confidentiality of such Confidential Information; (ii) accountants, banks, or another financing sources (or their advisors) or in connection with a merger, acquisition or securities offering; or (iii) third parties as required by law or regulation to be disclosed; provided, however, that the party subject to such disclosure requirement shall provide written notice to the other party promptly upon receiving notice of such requirement in order to enable the other party to seek a protective order or otherwise prevent disclosure of the other party’s Confidential Information.
9.Representations. Each party represents and warrants to the other that (i) it has power and authority to enter into this Agreement, (ii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly and validly authorized by all necessary corporate or other action and does not violate any provision of its certificate or articles of incorporation, bylaws, operating agreement or other governing documents or any agreement by which it is bound, and (iii) this Agreement is a valid, legally binding obligation of such party, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally.
10.Warranties and Disclaimers. Customer acknowledges that no computer system or software can be made completely stable or secure, and that BeCloud cannot guarantee the stability, safety or security of Customer’s network or data. BeCloud warrants that it will perform the Services in a professional and workmanlike manner. Notwithstanding anything to the contrary in this Agreement, and except for the warranty set forth in this Section 10, there are no other warranties, express or implied, by operation of law or otherwise. BeCloud disclaims the implied warranties of merchantability and fitness for a particular purpose and non-infringement of third-party proprietary rights.
11.Limitation of Liability. BeCloud’s entire liability, and Customer’s exclusive remedy, shall be, the return of the compensation paid (not to exceed three months) for the particular Services rendered pursuant to this Agreement. BeCloud shall not be liable, in contract, tort (including negligence), or otherwise, for (i) any incidental, indirect, special, consequential or punitive damages of any kind, or (ii) for the loss of revenue or profits, loss of business, loss of information or data, or other financial loss, arising out of or in connection with the use, inability to use, reliance upon, accuracy, performance, or failure of the Services, even if BeCloud has been advised of the possibility of such damages and regardless of whether such damages were foreseeable, except to the extent that the same are caused by the willful misconduct or gross negligence of BeCloud.
12.Notices. All notices, demands, requests and other communications to be given under this Agreement by either party to the other shall be deemed to have been duly given in writing and personally delivered or sent by mail, registered or certified, postage prepaid with return receipt requested, to the Customer at the address on file with BeCloud and to BeCloud at 3000 Old Canton Road, Suite 450, Jackson, MS 39216. Either party may change its address for the receipt of such notices by delivering a written notice of its new address to the other party in accordance with this Section 12.
13.Miscellaneous. The following general provisions are an integral part of this Agreement: (a) this Agreement may not be assigned by Customer without the prior written consent of BeCloud; (b) this Agreement shall inure to the benefit of and constitute a binding obligation upon the parties, their respective heirs, legal representatives and permitted assigns; (c) in the event that one or more of the provisions of this Agreement shall become invalid, illegal or unenforceable in any respect, the validity or legality and unenforceability of the remaining provisions contained herein shall not be affected thereby. Any waiver by a party hereto of any breach of this Agreement of any kind or character whatsoever by the other party, whether such waiver is direct or implied, shall not be construed as a continuing waiver or consent to any subsequent breach of this Agreement on the part of the other party; (d) this Agreement shall be governed, construed, performed, and enforced in accordance with the laws of the State of Mississippi, without regard to principles of conflicts of laws; (e) should either party employ an attorney to enforce any of the provisions of this Agreement, or to recover damages for breach of this Agreement, the prevailing party shall be entitled to recover all reasonable costs, damages and expenses, including reasonable attorneys’ fees, expended or incurred by the prevailing party in connection therewith from the non-prevailing party; and (f) this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The delivery of an executed counterpart signature page by facsimile is as effective as executing and delivering this Agreement in the presence of the other parties to this Agreement.
14.Force Majeure. BeCloud shall be excused from performance hereunder for the period of time and to the extent that BeCloud is prevented or delayed from performing any of the Services, in whole or in part as a result of delays caused by Customer, an act of God, war, civil disturbance or civil disobedience, court order, labor dispute, non-performance by a third party or other cause beyond the control of BeCloud, including but not limited to failures or fluctuations in power, heat, light, air conditioning or telecommunications equipment, and any such nonperformance shall not be a default or grounds for termination or other remedy under this Agreement.
15.Insurance. BeCloud shall obtain and maintain in full force and effect during the term of this Agreement (i) commercial general liability insurance (including contractual liability coverage) with coverage limits of not less than One Million Dollars ($1,000,000) per occurrence, (ii) auto liability insurance with coverage limits of not less than Three Hundred Thousand Dollars ($300,000) per occurrence, and (iii) to the extent required by law, worker’s compensation insurance.
16.Entire Agreement. This Agreement, together with all exhibits, schedules or attachments hereto, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all other agreements between the parties, their predecessors and affiliates, except as otherwise expressly provided for herein. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. There is no condition precedent to the effectiveness of this Agreement. Any modification of, or addition to, this integrated Agreement must be in writing signed by the parties.
©2013 BeCloud, LLC
November 9, 2013 revision