Legal

Last Updated: January 8, 2021

GENERAL TERMS AND CONDITIONS

The terms and conditions of product sales and monthly service(s) or specific service projects are limited to those contained herein and are collectively referred to herein after as “AGREEMENT” or “MASTER TERMS AND CONDITIONS”. Any additional or different terms or conditions in any form delivered by you (“CLIENT”) are hereby deemed to be material alterations to this AGREEMENT and are therefore summarily rejected by PSP Solutions, LLC DBA REDiTECH (“PROVIDER”).

By accepting delivery of products or by engaging with the PROVIDER on a statement of work, invoice, or other agreement to provide any type of services to the CLIENT, CLIENT agrees to be bound by and accepts the terms and conditions of this AGREEMENT unless the PROVIDER and the CLIENT have mutually signed a subsequent and separate agreement that specifically states said agreement is in lieu of this specific AGREEMENT, in which case that mutually signed separate agreement shall govern the order of business therein.

CLIENT does in fact consent to receiving electronic documents from PROVIDER. These documents may be provided via a web browser or by email transmissions or other forms of electronic transmission via internet or cellular services. CLIENT may decline this consent by contacting PROVIDER in writing and requesting such. Electronic signatures or copies of signatures sent via electronic means are the equivalent of personally written and signed documents and shall hold such legally binding power as an original signature.

Prior dealings (such as quotes, invoices, inquiries, RFPs, RFIs and the like) or contracts will not be considered to affect this AGREEMENT contained herein. This AGREEMENT is understood to contain the entirety of the AGREEMENT between the CLIENT and the PROVIDER for the matters contained herein and shall supersede and replace any previous communications whether written, oral, electronic, implied, or otherwise with respect to the subject matter hereof.

1. Terms and Termination of this AGREEMENT

1.1 Terms: This AGREEMENT carries a term of one (1) year(s). This AGREEMENT automatically renews for a subsequent one (1) year term beginning on the day immediately following the end of the Initial Term, unless either party gives the other ninety (90) days prior written notice of its intent not to renew this AGREEMENT.

1.2 This AGREEMENT may be terminated by the CLIENT upon sixty (60) days written notice if the PROVIDER fails to fulfill, in any material respect, its obligations under this AGREEMENT and does not cure such failure within thirty (30) days of receipt of such written notice, or

1. Breaches any material term or condition of this AGREEMENT and fails to remedy such breach within thirty (30) days of receipt of such written notice.
2. Terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this AGREEMENT.
3. This AGREEMENT may be terminated by the PROVIDER upon sixty (60) days written notice to the CLIENT.
4. If either party terminates this AGREEMENT, PROVIDER will assist CLIENT in the orderly termination of services, including timely transfer of the services to another designated provider. CLIENT agrees to pay PROVIDER the actual costs of such services.
5. Fees, Payments, Payment Methods, Credits, Applicable Taxes

2.1 Fees: A $50 fee will be assessed on all unpaid invoices on the 5th day after the published due date and finance charges will be applied at a rate of 1.25% for all invoices or portions of invoices that are thirty (30) days past due. This interest will compound monthly until the delinquent balance is paid in full.

2.2 Payment: Payment for agreed monthly services will be due within Fifteen (15) days of the invoice date regardless of the date the invoice is received. Payment for projects governed by this AGREEMENT shall be paid in the format of 100% of the hardware costs being paid prior to the commencement of the project and 100% of the agreed labor cost being paid upon completion of the project if the labor cost is under $10,000. In cases where the labor cost for a single project exceeds $10,000, the CLIENT agrees to pay 50% of the labor cost prior to the commencement of the project and the remaining 50% of the labor cost upon completion of the project.  Completion of project shall be defined as the “Scope Of Work” being complete. Should the CLIENT work with a PROVIDER approved third party leasing company for a project, the payment terms will be governed by the third-party leasing company as negotiated between PROVIDER and said leasing company.

2.3 Payment Methods: REDiTECH will accept payments in multiple forms. These forms include credits cards including Visa, Mastercard, American Express, Capital One, Citibank, Discover, and Chase. Payments will also be accepted via ACH. Please note that bank drafted paper checks will not be accepted for efficiency purposes. The PROVIDER’s billing department will work with the CLIENT to collect the proper checking or savings account information to set up ACH (Automated Clearing House) payments.

2.4 CLIENT agrees that all payments made via credit card (whether a one-time payment or a recurring monthly payment) will incur an additional 3% processing fee. Payments made via ACH will not incur any additional fees.

2.5 Credits: Credit memos will be communicated individually between the CLIENT and the PROVIDER. Credits may be used in one of two ways: A. Reduction of balances toward outstanding invoices. B. Full reimbursement by bank drafted check if the CLIENT currently has no outstanding invoices.

2.6 Taxes: Applicable Local, State, and Federal taxes will be applied to all services rendered under this AGREEMENT. CLIENT is responsible for all applicable taxes and shall pay such taxes. CLIENT may produce a valid state issued certificate of exemption to the PROVIDER and the taxes will be properly adjusted to accommodate this exemption.

3. Non-Disclosure and Confidential Information

3.1 Confidential Information: CLIENT acknowledges that during the course of providing standard and regular IT Services, PROVIDER will have access to private and confidential information should such information reside in or on the CLIENT’s network. This information includes information governed by HIPAA, PCI, and other regulatory bodies. PROVIDER will handle such information in a confidential and professional manner as set out by Industry Best Practices and in a manner concurrent with the description of the service request.

3.2 Use of Confidential Information: CLIENT and PROVIDER shall use confidential information for the sole purpose of performing duties governed herein. There shall be no use of confidential information in whole, in part, or in any other form for any other purpose. Both parties agree to refrain from disclosing confidential information from third parties unless a prior and separate agreement is made for an agreeable purpose between the CLIENT and the PROVIDER. Furthermore, the PROVIDER and the CLIENT agree to take all reasonable steps to keep all information (Including quotations for services from the PROVIDER) confidential and not to disseminate this type of information to outside third parties. If either party is required by subpoena to turn over confidential information to a proper governing authority, the receiving party shall immediately notify the other party. However, it shall be assumed that the subpoenaed party shall comply with such lawful requests.

3.3 Remedies for Breach of Non-Disclosure: The confidential information that is covered by this AGREEMENT is of unique character to such an extent that monies and damages may not be a significant form of compensation should there be a breach of this AGREEMENT (although they are not ruled out as available forms of remedy). The parties agree that injunctive and other forms of equitable relief would be appropriate to prevent any such actual or threatened unauthorized use or disclosure.

4. Non-Solicitation of Employees

4.1 CLIENT recognizes and agrees that the PROVIDER’s employees are its most valuable asset. In consideration of the value of these assets, CLIENT agrees that it shall not solicit (or in any other direct or indirect way, cause to be solicited) for employment any of the PROVIDER’s employees during the terms of this AGREEMENT or for a period of 12 thereafter. If any employee quits or resigns his or her position for any reason and is then employed by the CLIENT (or their affiliate or subsidiary) during anytime that this AGREEMENT remains in effect or for a period of 12 months after, CLIENT agrees to pay PROVIDER 150% of that employees annual salary immediately. The CLIENT and PROVIDER both agree that this is a reasonable amount in consideration of the recruitment and training the PROVIDER would have to undertake to replace the employee.

5. Minimum Standards

5.1 CLIENT understands and acknowledges that PROVIDER has a set of minimum standards to which the CLIENT’s network must comply in order for PROVIDER’s services to be rendered in a professional, timely, and effective fashion. PROVIDER may come to CLIENT at any time to let them know that certain hardware or software is “out of date” per the manufacturer’s specifications or no longer of a serviceable standard or condition. CLIENT shall be compelled to adjust their environment to comply with such minimum standards in order for PROVIDER to properly provide services. Refusal to comply with this section may be grounds for termination of this AGREEMENT as laid out in section 1.2(c) of this AGREEMENT. PROVIDER, at its own discretion, may also opt to eliminate said out of date or unserviceable hardware or software from the PROVIDER’s list of items they are responsible for servicing under this AGREEMENT and charge an hourly rate of $135/hr. for any services requested to be performed on such hardware or software.

6. Cooperation of Client

6.1 CLIENT will allow PROVIDER to use CLIENT’s machines, communications devices, facilities, features, and other such equipment at no charge, as in situation where the CLIENT and PROVIDER agree that it is a reasonable need to enable PROVIDER to render agreed services.

7. Access to Equipment and Facilities

7.1 CLIENT agrees that PROVIDER may utilize certain items in the CLIENT’s stack of equipment and may gain access to CLIENT facilities as necessary to render services agreed upon under this AGREEMENT. CLIENT shall retain ownership and title of all CLIENT owned equipment that is utilized by PROVIDER. CLIENT may deny access at any time as it makes specific business sense for the CLIENT, however, if access is denied, CLIENT understands that there may be an impact up to and including inability to remedy service issues as requested by CLIENT. CLIENT also agrees that PROVIDER’s inability to access one piece of equipment or software does not only impact the PROVIDER’s ability to service that specific piece of hardware or software but may lead to the inability to service other network connected pieces of hardware or software. In such situation PROVIDER shall be held harmless and any previously agreed upon services to be rendered shall be deemed void.

8. Pricing Adjustments

8.1 PROVIDER reserves the right to make adjustments to pricing for products and services alike. Reasons for such adjustments may include, but are not limited to, product discontinuation, manufacturer price changes, changes in market conditions, product availability, errors in manufacturer advertisements, price changes from PROVIDER’s suppliers, and discovery of a disparity between CLIENT consumption of monthly services and the set monthly service fee. All orders are subject to PROVIDER’s availability to perform services and therefore PROVIDER cannot guarantee that it can always perform all services requested at any time. Any Time and Material estimates that are provided by the PROVIDER are merely for planning purposes as both the Time and Materials needed to complete a request can vary outside of the original estimate for purposes beyond the control of the PROVIDER.

9. Representation of Warranties

9.1 PROVIDER represents and warrants that it has the proper rights, power, and authority to enter into this AGREEMENT and to fully perform all functions hereunder, will use commercially available and commercially reasonable efforts to provide all services requested and required of it under this AGREEMENT in accordance with industry best practices.

9.2 PROVIDER does not produce hardware or commercial off the shelf software covered under this AGREEMENT. Any warranty provisions are passed through from the third-party sellers to the CLIENT and are subject to the individual manufacturer’s limitations. Labor provided by PROVIDER is not covered under manufacturer’s warranty. CLIENT is hereby notified that all warranty claims are to be processed through the individual manufacturer of the hardware or software in question.

9.3 PROVIDER may provide equipment owned by PROVIDER and stored at CLIENT’s location. Such equipment may include but is not limited to remote backup devices, desktops, servers, routers, firewalls, switches and software. Such equipment shall be properly secured and cared for in the same manner as the CLIENT’s own equipment. CLIENT shall be liable for any damages or loss that is not covered by that specific equipment’s manufacturer’s warranty. If such loss or damage occurs CLIENT agrees that it is reasonable for PROVIDER to invoice CLIENT for a replacement of similar model and or capability of the lost or damaged device.

10. Disclaimer of Warranties and Limitations of Liabilities

10.1 The express, but limited warranty in section 9 above is in lieu of all other warranties, expressed, or implied regarding PROVIDER’s services. PROVIDER and its affiliates specifically disclaim all warranties of any kind whether expressed or implied, including, but not limited to all warranties of merchantability, fitness for a specific purpose, title, non-infringement, and any warranties arising from the course of dealing, course of performance, or trade usage.

10.2 PROVIDER and its affiliates shall not be liable for any incidental, direct, indirect, exemplary, special, consequential, or punitive damages or for any lost data including, but not limited to damages from lost profits, costs of procurement of substitute goods or services, business interruptions arising from or relating to this AGREEMENT or arising from or relating to the use of software which has been modified by anyone other than the PROVIDER, Loss of programs and the like, that result from the use or inability to use the services or mistakes, omissions, interruptions, deletions of files or any and all directories, loss of data, errors, defects, delays in operations or transmissions of data, or any other failure of performance however caused and under any existing or new theory of liability including negligence or other torts to the extent allowed by law, even if PROVIDER has been advised of the possibilities of such damage and works with CLIENT to make a decision to proceed with such process when deemed by CLIENT that the risks are worth the benefit of taking such actions.

10.3 CLIENT acknowledges and agrees that CLIENT has relied on no warranties except the limited expressed warranty(s) in section 9.

10.4 CLIENT agrees that the total liability of PROVIDER and its affiliates and the sole remedy of the CLIENT and any end user for any claims regarding PROVIDER is limited to the CLIENT’s right to terminate this AGREEMENT unless determined otherwise by an adjudicator in Douglas County, Nebraska. Should that adjudicator deem that liability is above and beyond the right to terminate this AGREEMENT, the CLIENT agrees that the total liability of PROVIDER and its affiliates shall be capped at the single occurrence amount that the PROVIDER’s General Liability Insurance policy allows for the event germane to the adjudication.

10.5 Except as expressly provided in this AGREEMENT, CLIENT acknowledges that PROVIDER is in no manner responsible for any actions or inactions of third-party vendors or any other third party. PROVIDER is in no way representing that the services shall be uninterrupted, error free, or without delay. PROVIDER does not and cannot control the flow of data through the internet. Such flow depends in large part on the performance of third parties whose actions or inaction can, at times, produce situations in which connections to the internet may be impaired or disrupted. Accordingly, CLIENT acknowledges that PROVIDER disclaims all liability related to events outside of its control and or in the control of all other third parties and CLIENT shall have no right to rely upon any representation of any third party in respect to the services as they apply to the services rendered by the PROVIDER. Further, CLIENT acknowledges that, in providing the services, PROVIDER shall necessarily rely upon information, instructions, and services from CLIENT, its administrator(s), employees, agents, and other third parties providing computer and communications hardware and software and internet services. Except as expressly provided in this AGREEMENT, CLIENT fully assumes the risk associated with errors in such information, instructions, and services.

11. Liquidated Damages

11.1 CLIENT acknowledges that PROVIDER is relying on CLIENT to perform as agreed upon under this AGREEMENT and has therefore made significant investments in time, equipment, and personnel. To protect this investment, PROVIDER has the right to collect liquidated damages in the case of breach by the CLIENT. If CLIENT fails to perform as outlined in this AGREEMENT, CLIENT agrees to pay liquidated damages in the amount equal to six (6) times the amount of the monthly services fee set out by the current service agreement or other current Managed Services Agreement due to PROVIDER for services rendered at the time for the breach.

12. Coverage

12.1 CLIENT agrees that unless otherwise specified in a separate written agreement, business hours shall mean Monday through Friday from 8:00am to 5:00pm Central Standard Time. These times exclude national holidays. Provider will make best efforts to respond to emergency requests outside of business hours.

13. Indemnification

13.1 CLIENT and PROVIDER shall defend, indemnify, and hold harmless one anther from and against any claims, damages, expenses and liabilities, causes of action, and costs, including all reasonable costs of defense including attorney fees arising out of or resulting from the following.

1. Death. Personal Injury or property damage from the unintentional reckless acts of the indemnifying party, its employees, subcontractors, or suppliers in connection with the obtaining or providing of services.
2. Claims of infringement of any intellectual property right in connection with the obtaining or providing of services.
3. The unauthorized disclosure, use, or infringement by the indemnifying party of any proprietary or confidential information of any third party. The indemnified party shall give a timely notification to indemnifying party of any claim(s) and shall cooperate with the indemnifying party and its agents in the defense of the claim(s). Each party’s obligation to indemnify the other party shall survive the termination of this AGREEMENT.
4. Entire AGREEMENT

14.1 This AGREEMENT contains the entire AGREEMENT and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of products or services inconsistent with any of the terms hereof. This AGREEMENT may not be modified or amended other than by a new agreement in writing between the CLIENT and the PROVIDER.

15. Successors and Assignees

15.1 Each service agreement as well as this AGREEMENT shall benefit and be binding upon the parties hereto and the respective successors and assignees.

16. Returns

16.1 Products are non-returnable unless approved in writing by the PROVIDER within 30 days of the invoice date. Those approved returns may be subject to a restocking fee of 10% of the invoice price of the product being returned.

17. Severability

17.1 Wherever possible, each provision of this AGREEMENT shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the AGREMENT shall be prohibited by or invalid under applicable laws, such provisions shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this AGREEMENT.

18. Waivers

18.1 The failure or forbearance of PROVIDER or CLIENT to enforce any right or claim against the other party shall not be deemed to be a waiver by the PROVIDER or the CLIENT of such right or claim or any other right or claim herein. Furthermore, the waiver by the PROVIDER or the CLIENT of breach hereof shall not operate or be construed as a waiver of any subsequent breaches of the same or any other provision.

19. Passwords

19.1 CLIENT acknowledges that PROVIDER may need access to secure passwords to perform the duties described herein this AGREEMENT and therefore agrees to provide such passwords for the PROVIDER to perform the duties and services described herein.

20. Force Majeure

20.1 Neither Party shall be in breach of its obligations under this AGREEMENT (other than payment obligations) or incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by the other (other than under any express indemnity in this AGREEMENT) if and to the extent that it is prevented from carrying out those obligations by, or such losses or damages are caused by, a Force Majeure Event except to the extent that the relevant breach of its obligations would have occurred, or the relevant losses or damages would have arisen, even if the Force Majeure Event had not occurred.

21. Arbitration

21.1 Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo and prevent irreparable harm pending the selection of an arbitrator, All claims and disputes arising under or relating to this AGREEMENT are to be settled by binding arbitration in the state of Nebraska or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in technology services disputes and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.

 

22. Availability of Products

22.1 Under no circumstance shall PROVIDER be responsible to CLIENT or anyone else for its failure to fill accepted orders, or for its delay in filling accepted orders, when such failure or delay is due to strike, accident, labor trouble, acts of nature, freight embargo, war, civil disobedience, vendor problems, or any cause beyond the PROVIDER’s control.

23. Transfer of Ownership

23.1 CLIENT agrees that transfer of ownership will pass to the CLIENT from the PROVIDER upon receipt of the goods at the PROVIDER location and upon identification of the CLIENT’s product by the Provider.

24. Notices

24.1 Any notice required or permitted under this AGREEMENT shall be in writing and shall be delivered by the United States Postal Service via Certified Mail with a return receipt requested, postage prepaid, and properly addressed to the office of the respective parties to this AGREEMENT or at other addresses as such parties to this AGREEMENT may specify in writing at a later date for the reception of certified mail notifications. This section shall apply whether said mail is accepted, denied, or unclaimed.

25. Cyber Security Exclusions

25.1 The delivery of products and services discussed and explained in this AGREEMENT are assumed to not be caused by, needed because of, or requested considering, any type of cyber security breach.

25.2 Issues caused by or due to cyber security breaches including but not limited to, infections, system takeovers, worms, trojans, SQL injection attacks, man in the middle attacks, denial-of-service attacks, command and control server attacks, ransomware, or any other nefarious act performed by an uninvited outside source or party of any origination shall be dealt with in a best effort scenario and may require the assistance of an outside third party that specializes in cyber security remediation.

25.3 These services and associated costs shall be billed on a separate basis, unless CLIENT subscribes to PROVIDER’s Managed Cyber Security Services Bundle (REDiSECURE) and has had this Managed Cyber Security Services Bundle (REDiSECURE) for 30 days prior to the above described incident. In such case, remediation services rendered by the PROVIDER are covered under the monthly Managed Services Agreement.

25.4 The hourly rate for work that is done in house by the PROVIDER shall be billed at $175/hr if CLIENT does not subscribe to the Managed Cyber Security Services Bundle or has not been subscribed to the Managed Cyber Security Services Bundle for the requisite 30 days prior to the above described incident.

25.5 Any work that requires the involvement of a third-party cyber security expert shall be billed based on the rates provided by said provider. Such third-party services will be billed to the CLIENT regardless of the subscription status of the PROVIDER’s Managed Cyber Security Services Bundle. The CLIENT shall get a quote for the Statement of Work to be performed by said third-party cyber security expert and shall be aware of these charges prior to the commencement of remediation. Such agreement for services shall be between the CLIENT and said third-party provider.

25.6 As described in section 10.2 of this AGREEMENT, PROVIDER is not responsible for or liable for, any type of adverse or unwanted effect, including but not limited to, the compromise, degradation, takeover, or loss of data or the incapacitation of network or computing capabilities due to any type of cyber security breach under any circumstance regardless of the subscription status of the PROVIDER’s Managed Cyber Security Services Bundle.

25.7 PROVIDER’s Managed Cyber Security Services Bundle (REDiSECURE) is standard on all REDiTECH Support Partnership(s). The absence of PROVIDER’s Managed Cyber Security Services Bundle (REDiSECURE) indicates that this service was declined and invokes the relevant portion of section 25.3 as described above.