MASTER SERVICES AGREEMENT
THE COMPUTER GUY, LLC
MASTER SERVICES AGREEMENT

Hello and thank you for entrusting The Computer Guy, LLC (“TCG,” “we,” “us,” or “our”) to provide you with professional information technology services. This Master Services Agreement (this “Agreement”) governs our business relationship with you, so please read it carefully and keep a copy for your records.

1. SCOPE

1.1 Context. Throughout this Agreement, references to “Client,” “you,” or “your” mean the entity that has accepted a quote, proposal, service order, or similar document (electronic or otherwise) from TCG. In this Agreement, we refer collectively to these types of documents as a “Quote,” although the actual title(s) or caption(s) may vary.

1.2 Scope of Services. This is a “master” agreement and, as such, specific services are not listed in this Agreement. Instead, any services to be provided to you or facilitated for you (as applicable) will be described in a Quote (collectively, “Services”). The scope of our engagement with you is limited to those Services expressly listed in a Quote. All other services, projects, and related matters are out of scope and will not be provided unless we expressly agree in writing (collectively, “Out of Scope Services”). In addition to a Quote, the Services are also defined, clarified, and governed by an additional document referred to in this Agreement as a “Services Guide.” The Services Guide is akin to a “user manual” and provides important and binding details about the Services, including, for example: (a) how the Services are provided/delivered; (b) service levels applicable to the Services; (c) additional payment terms/obligations; and (d) auto-renewal terms for the Services. Please read both the Quote and the Services Guide before accepting the Quote. If you have questions about either of those documents or this Agreement, do not sign the Quote; instead, contact us for more information.

1.3 Version. Each Quote will be governed by the version of this Agreement in effect as of the “Last Updated” date indicated at the bottom of this document. For that reason, you should keep a copy of this document and note the date indicated below when you accept a Quote.

1.4 Conflicts. The provisions of a Quote govern over conflicting or different terms contained in this Agreement and the Services Guide—this allows us to craft solutions to meet your needs by making applicable changes in the Quote. Conflicting language between the Services Guide and this Agreement will be interpreted in favor of the Services Guide.

1.5 Third Party Providers / Services. Some services may be provided to you directly by our personnel (for example, installing software agents on managed devices or physically installing equipment at your premises). These services are distinguishable from services provided to you or to us by third-party providers, often referred to as “upstream providers.” In this Agreement, upstream providers are “Third Party Providers,” and services provided by Third Party Providers are “Third Party Services.” By way of example, Third Party Services may include help desk services, malware detection and remediation services, firewall and endpoint security-related services, backup and disaster recovery solutions, and software used to monitor the managed portion of your network, among others.

1.6 Selection. As your managed information technology provider, we will select Third Party Providers that provide services appropriate for your managed information technology environment (the “Environment”) and facilitate the provision of Third Party Services to you. Not all Third Party Services will be expressly identified as being provided by a Third Party Provider. We reserve the right to change Third Party Providers in our sole discretion, provided the change does not materially diminish the Services we are obligated to provide to you under a Quote.

1.7 Reseller; “As Is” Third Party Services. We are resellers of Third Party Services and do not provide those services to you directly. Accordingly, we are not and cannot be responsible for any defect, omission, or failure of any Third Party Service, or any failure of any Third Party Provider to provide its services to you or to us. Third Party Services are provided on an “as is” basis only. If an issue requiring remediation arises with a Third Party Service, we will endeavor to provide a reasonable workaround or, if available, a temporary fix. However, we do not warrant or guarantee that any particular workaround or fix will be available or achieve any particular result, or that Third Party Services will operate uninterrupted or error-free.

1.8 Price Increases (Third Party Pass-Through). We reserve the right to pass through to you any increases in costs and/or fees charged by Third Party Providers for Third Party Services (“Pass Through Increases”). We do not control Third Party Providers and cannot predict whether price increases will occur. If they occur, we will endeavor to provide as much advance notice as reasonably possible.

2. ADVICE; INSTRUCTIONS; CO-MANAGEMENT; OPERATING REQUIREMENTS

2.1 Advice; Instructions. From time to time, we may provide advice and directions related to the Services (“Advice”), such as recommendations to increase capacity, replace obsolete equipment, or refrain from activities that disrupt or reduce the security of the Environment. You are strongly advised to promptly follow our Advice, which may require additional purchases or investments at your sole cost. We are not responsible for problems (including downtime or security-related issues) caused by your failure to promptly follow our Advice. If, in our reasonable discretion, your failure to follow our Advice makes part or all of the Services economically or technically unreasonable or impracticable to provide, then we may terminate the applicable Services For Cause (described below) by providing notice, or we may adjust the scope of the Quote to exclude impacted portions of the Environment. Unless specifically and expressly stated in writing by us (such as in a Quote), the following are out of scope: (a) services required to remediate issues caused by your failure to follow our Advice; (b) services required to remediate your unauthorized modification of the Environment; and (c) services required to bring the Environment up to or maintain the Minimum Requirements (defined below).

2.2 Co-Management. In co-managed situations (for example, where you designate other vendors or personnel, “Co-Managed Providers,” to provide services that overlap or conflict with the Services), we will endeavor to implement the Services efficiently and effectively. However: (a) we are not responsible for the acts or omissions of Co-Managed Providers, or remediation of problems, errors, or downtime associated with them; and (b) if a Co-Managed Provider’s determination differs from our position on a Service-related matter, we will yield to the Co-Managed Provider’s determination and bring that situation to your attention.

2.3 Prioritization. All Services will be implemented and/or facilitated (as applicable) on a schedule and in a prioritized manner, as we determine reasonable and necessary. Start dates may vary from dates we state depending on the Services and any prerequisites (including transition or onboarding activities) that must be completed.

2.4 Modifications. To avoid delay or negative impact on the Services, we strongly recommend that you refrain from modifying or moving the Environment, or installing software in the Environment, unless we expressly authorize it. In all situations (including those in which we are co-managing an Environment with you as described above), we are not responsible for unauthorized changes to the Environment or issues or errors arising from those changes.

2.5 Third Party Support; OEM Fees. If, in our discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM on your behalf and invoice you for all fees and costs involved (“OEM Fees”). If OEM Fees are anticipated in advance, we will endeavor to obtain your permission before incurring such expenses unless exigent circumstances require otherwise. We do not warrant or guarantee that payment of OEM Fees will resolve any particular issue; the resolution process may require OEM Fees to narrow or eliminate potential causes.

2.6 Authorized Contact(s). We may rely on directions or consent provided by your personnel or representatives you designate (“Authorized Contacts”). If no Authorized Contact is identified in a Quote, or if a previously identified Authorized Contact is no longer available, then your Authorized Contact will be the person: (a) who accepted the Quote; and/or (b) who you generally designate during our relationship to provide direction or guidance. We may rely on directions from your Authorized Contact until we are affirmatively made aware of a change. If a change is provided in writing (physical document or email), it will be implemented within two (2) business days after the first business day on which we receive notice. If provided in person or by live telephone call, it will be implemented on the same business day. Do not use a ticketing system or help desk request to notify us of a change to an Authorized Contact, and do not leave a recorded message for such notice. We reserve the right (but not the obligation) to delay Services until we can confirm the Authorized Contact’s authority.

2.7 Access. You grant to us and our designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to provide the Services. Depending on the Service, we may install software agents to enable such access. You are responsible, at your own cost and prior to commencement of Services, to secure any necessary rights of entry, licenses (including software licenses), permits, or other permissions necessary for TCG or Third Party Providers to provide the Services. Proper and safe environmental conditions must always be provided by you. TCG is not required to provide Services under conditions that pose (or may pose) a safety or health concern or require extraordinary or non-industry-standard efforts.

2.8 Ongoing Requirements; Minimum Requirements. Everything in the managed Environment must be genuine and properly licensed (including hardware and software). If we request proof of authenticity and/or licensing, you must provide it. If we require certain minimum hardware or software requirements (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements as an ongoing condition of our providing the Services.

2.9 Response. Our response to issues will be handled in accordance with the Quote and, if applicable, the Services Guide. We are not responsible for delays during: (a) the Transition Exception (defined below); (b) Scheduled Downtime, Client-Side Downtime, or Vendor-Side Downtime (defined below); (c) periods when we must suspend Services to protect the security or integrity of the Environment or our equipment or network; or (d) a force majeure event.

2.10 Scheduled Downtime. “Scheduled Downtime” means hours, as determined by us, during which we perform scheduled maintenance or adjustments to the Environment. Scheduled Downtime will not occur between 9:00 AM and 5:00 PM Eastern Time, Monday through Friday, without your authorization, unless exigent circumstances exist. We will use best efforts to provide at least twenty-four (24) hours’ notice.

2.11 Client-Side Downtime. We are not responsible for delays or deficiencies in providing or accessing Services caused by your actions or omissions (“Client-Side Downtime”). Client-Side Downtime includes periods when we require your participation or require information, direction, or authorization but cannot reach your Authorized Contact(s).

2.12 Vendor-Side Downtime. We are not responsible for delays or deficiencies caused by third-party service providers, licensors, or upstream service or product vendors (“Vendor-Side Downtime”).

2.13 Transition Exception. For the first forty-five (45) days following commencement of any Service, and during off-boarding-related services (such as transitioning Services to another provider or terminating a service), response-time commitments do not apply (the “Transition Exception”). You acknowledge that unanticipated downtime or delays may occur during these periods.

3. FEES; PAYMENT

3.1 Fees. You agree to pay fees, costs, and expenses for the Services as described in each Quote and the Services Guide. You are responsible for sales tax and other governmental fees associated with the Services. If you qualify for a tax exemption, you must provide a valid certificate or other appropriate proof. You are also responsible for all freight, insurance, and taxes (including import/export duties, sales, use, value add, and excise taxes).

3.2 Schedule. Unless otherwise indicated in a Quote, fees are payable in advance. Generally, fees anticipate automatic monthly recurring payment. Payment by other methods may result in increased fees or costs.

3.3 Nonpayment. Fees unpaid more than fifteen (15) days after due will accrue interest at the lower of (a) 1% per month, or (b) the maximum rate permitted by law, until paid. We reserve the right (but not the obligation) to suspend part or all Services without prior notice if any undisputed fees are not timely paid. Monthly or recurring charges will continue to accrue during suspension. Fee disputes must be received within sixty (60) days after the applicable Service is rendered or the date you pay an invoice, whichever is later; otherwise, you waive the right to dispute the fee. We may charge a reasonable reconnect fee (no more than 10% of your monthly recurring fees) if Services are suspended for nonpayment.

3.4 Increases. Fee increases (including increases in monthly recurring fees or service rates) will be handled as described in the Quote and Services Guide. Please read those documents carefully so that you understand how, and when, such increases may occur. Limits on fee increases (if any) do not apply to Pass Through Increases, which will be excluded when calculating fee increases.

3.5 Expenses During State of Emergency. Costs or expenses incurred while providing Services during a national, state, or local emergency, or during fuel, manpower, or other shortages (“State of Emergency”), will be invoiced and payable by you. Examples include increased gasoline or electrical power costs, or health/safety equipment reasonably necessary to provide Services.

4. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY

4.1 Hardware / Software Purchases. All equipment, machines, hardware, software, peripherals, or accessories purchased through TCG (“Third Party Products”) are generally nonrefundable once the item is obtained from TCG’s third party provider or reseller. If you desire to return a Third Party Product, then the third party provider’s or reseller’s return policies will apply. We do not guarantee that Third Party Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided, and you agree to be responsible for paying all re-stocking or return-related fees charged by the third party provider or reseller. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality, or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. All Third Party Products are provided “as is” and without any warranty whatsoever as between TCG and you (including but not limited to implied warranties).

4.2 Liability Limitations. This paragraph limits the liabilities arising from the Services and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that TCG would not provide any Services, or enter into any Quote or this Agreement, unless TCG could rely on the limitations described in this paragraph. In no event will either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to TCG), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services, this Agreement, any Quote, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Quote, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation. Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to TCG for the specific Service upon which the applicable claim(s) is/are based during the three (3) month period immediately prior to the date on which the cause of action accrued or $10,000, whichever is greater. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose; however, the limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, gross negligence, or to the extent that the Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims. Under no circumstances shall TCG have any liability for any claims or causes of action arising from or related to Out of Scope Services.

4.3 Waiver of Liability for Admin/Root Access. We strongly suggest that you refrain from providing administrative (or “root”) access to the Environment to any party other than TCG, as such access by any person other than a TCG employee could make the Environment susceptible to serious security and operational issues caused by, among other things, human error, hardware/software incompatibility, malware/virus attacks, and related occurrences. If you request or require us to provide any non-TCG personnel (i.e., non-TCG employees, such as in a co-managed situation) with administrative or “root” access to any portion of the Environment, then you hereby agree to indemnify and hold us harmless from and against any and all Environment-related issues, downtime, exploitations, and/or vulnerabilities, as well as any damages, expenses, costs, fees, charges, occurrences, obligations, claims, and causes of action (collectively “Claims”) arising from or related to any activities that occur, may occur, or were likely to have occurred in or through the Environment at an administrative or root level, as well as any issues, downtime, exploitations, vulnerabilities, or Claims that can reasonably be traced back or connected to activities occurring at the administrative or root level (“Activities”) in the Environment provided, of course, that such Activities were not performed or authorized in writing by TCG. TCG’s business records shall be final and determinative proof of whether any Activities were performed or authorized in writing by TCG.

5. INDEMNIFICATION

5.1 Mutual Indemnification. Each party (an “Indemnifying Party”) agrees to indemnify, defend, and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees (collectively, “Damages”), that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

6. TERM; TERMINATION

There are several dates of which you should be aware, including the effective/termination dates of this Agreement and the effective/termination dates of the Services under a Quote. Each Quote will have its own term and will be terminated only as provided in this Agreement or as provided in the Quote or Services Guide.

6.1 This Agreement. This Agreement applies to all Services and is effective as of the date on which we provide a Service to you or on the date on which you accept a Quote, whichever is earlier (“Effective Date”). This Agreement will terminate automatically (i) if you or we terminate this Agreement For Cause (described below), or (ii) six (6) months after the last date on which we provide any Service to you. Upon the termination of this Agreement, all Services will immediately and permanently cease; however, the termination of this Agreement shall not change or eliminate any fees that accrued and/or were payable to us prior to the date of termination, all of which shall be paid by you. Please note, this Agreement shall not be terminated by either party without cause if Services are in progress under a Quote.

6.2 Quotes. The term of the Services will be as indicated in the applicable Quote and Services Guide. The termination of Services under one Quote shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services between the parties. Please note, a Quote and/or Services Guide may provide for auto-renewal of the Services; please review your documents carefully.

6.3 Termination Without Cause. Unless otherwise indicated in the Quote or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, Services are in progress. In addition, no party will terminate a Quote without cause prior to the Quote’s natural (i.e., specified) expiration or termination date. (By way of example: If a Quote provides for an annual service, then the Services under that Quote cannot be terminated without cause prior to the expiration of one year.) If you terminate the Services under a Quote without cause and without TCG’s consent, then you agree to be responsible for paying the Termination Fee described in Section 6.5, below.

6.4 Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a Quote, Services Guide, or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately the Services under the relevant Quote (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party.

6.5 Remedies for Early Termination. If TCG terminates this Agreement or any Quote For Cause, or if you terminate any Services under a Quote without cause prior to such Quote’s expiration date, then TCG shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to TCG had this Agreement or Quote (as applicable) remained in full effect, calculated using the fees and costs in effect as of the date of termination (“Termination Fee”). If you terminate this Agreement or a Quote For Cause, then you will be responsible for paying only for those Services that were delivered properly and accepted by you up to the effective date of termination, and nothing more.

6.6 Service Tickets. Given the vast number of interactions between hardware, software, wireless, and cloud-based solutions, a managed network may occasionally experience disruptions and/or downtime due to, among other things, hardware/software conflicts, communication-related issues, obsolete equipment, and/or user error (“Conflicts”). We cannot and do not guarantee that such Conflicts will not occur, and you understand and agree that the number of service tickets submitted by you is not, by itself, an indication of default by TCG.

6.7 Client Activity as a Basis for Termination. If you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then in addition to TCG’s other rights under this Agreement, TCG will have the right upon providing you with ten (10) days prior written notice, to terminate this Agreement or the applicable Quote For Cause.

6.8 Consent. You and we may mutually consent, in writing, to terminate a Quote or this Agreement at any time.

6.9 Equipment / Software Removal. Upon termination of this Agreement or applicable Quote for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which TCG Equipment is located to enable us to remove all TCG Equipment from the premises. If you fail or refuse to grant TCG access as described herein, or if any of the TCG Equipment is missing, broken or damaged (normal wear and tear excepted) or any TCG-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of all missing or damaged items. Certain services may require the installation of software agents in the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.

6.10 Transition; Deletion of Data. If you request our assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to TCG providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. You also understand and agree that any software configurations that we custom create or program for you are our proprietary information and shall not be disclosed to you under any circumstances. Unless otherwise expressly stated in a Quote or Services Guide or prohibited by applicable law, we will have no obligation to store or maintain any Client data in our possession or control following the termination of this Agreement or the applicable Services.

7. CONFIDENTIALITY

7.1 Defined. For the purposes of this Agreement, Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

7.2 Use. The Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Discloser in writing, or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any law, rule, or industry-related regulation.

7.3 Due Care. The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.

7.4 Compelled Disclosure. If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, that Recipient will immediately notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive the Recipient’s compliance with the provisions of this Section. The Recipient will use its best efforts, as directed by the Discloser and at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the Discloser), that the Recipient is legally compelled to disclose.

7.5 Additional NDA. In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information (such as, for example, a business associate agreement). In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information.

8. OWNERSHIP

8.1 Intellectual Property. Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement, any Quote, or a Services Guide conveys or grants any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the purposes of clarity, you understand and agree that we own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. If we provide licenses to you for third party software, then you understand and agree that such software is licensed, and not sold, to you, and your use of that software is subject to the terms and conditions of (i) this Agreement, (ii) the applicable Quote, (iii) written directions supplied to you by us, and (iv) any applicable EULA; no other uses of such third party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied, with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.

9. ARBITRATION

9.1 Binding Arbitration. Except for undisputed collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) or, if there is no AAA-certified arbitrator available within a twenty (20) mile radius of our office, then by any arbitration forum as determined by us, pursuant to the selected forum’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

10. MISCELLANEOUS

10.1 Changes to Services Guide. Services we provide and/or facilitate may be further described and governed under our Services Guide (described above). We reserve the right, and you hereby agree that we are permitted, to modify our Services Guide (and the Services themselves) from time to time, in our discretion, to accommodate changes in the industry and relevant services required under a Quote. You will be notified of those changes (if any) by email.

10.2 End User Agreements. Portions of the Services may require you to accept the terms of one or more third party end user license agreements, third party customer agreements and/or third party subscription agreements (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required in order for you to receive any Services, then you hereby grant us permission to accept the applicable agreement(s) on your behalf. End User Agreements may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree to be bound by the terms of all applicable End User Agreements. If, while providing the Services, you or we are required to comply with an End User Agreement and that agreement is modified or amended, we reserve the right to modify or amend any applicable Quote with you to ensure your and our continued compliance with the terms of the applicable End User Agreement.

10.3 BYOD. You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in writing by us, Devices managed under a Quote will not receive or benefit from the Services while the devices are detached from, or unconnected to, the Environment. Client is strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.

10.4 Equipment. The information on equipment returned to us at the end of the Services will be deleted; however, we cannot and do not guarantee that deleted information will be rendered irrecoverable under all circumstances. For that reason, we strongly recommend that you permanently delete any personal, confidential, and/or highly-sensitive information from such equipment before returning that equipment to us.

10.5 Compliance. Unless otherwise expressly stated in a Quote, the Services are not intended, and will not be used, to bring Client into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Client’s business or operations. Depending on the Services provided, the Services may aid Client’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.

10.6 Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law (such as HIPAA), then you agree to identify to us any data or information subject to protection under that law prior to providing such information to us or, as applicable, prior to giving us access to such information.

10.7 No Fiduciary. The scope of our relationship with you is limited to the specific Services provided to you; no other relationship, fiduciary or otherwise, exists or will exist between us. If, by operation of law, a fiduciary relationship is imposed or presumed for out-of-scope services, you hereby waive that relationship and any fiduciary obligations thereunder.

10.8 Virtual Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a Quote, the recovery of Impacted Data is out-of-scope. Moreover, unless expressly stated in a Quote or Services Guide, we will not be responsible for activating multifactor authentication in any application in or connected to the Environment. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents.

10.9 Physical Security. You agree to implement and maintain reasonable physical security for all managed hardware and related devices in your physical possession or control. Such security measures must include (i) physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment, (ii) an alarm system to mitigate and/or prevent unauthorized access to the premises at which the protected equipment is located, (iii) fire detection and retardant systems, and (iv) periodic reviews of personnel access rights to ensure that access policies are being enforced, and to help ensure that all access rights are correct and promptly updated.

10.10 Updates. Patches and updates to hardware and software (“Updates”) are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If Updates are provided to you as part of the Services, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, (iii) we will not be responsible for the remediation of any device or software that is rendered inoperable or non-functional due to the Update, and (iv) we reserve the right, but not the obligation, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Update will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.

10.11 Non-Solicitation. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of the other party’s employees with whom the Restricted Party worked to discontinue or reduce the scope of their business relationship with the other party, or recruit, solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current Quote immediately For Cause.

10.12 Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.

10.13 Assignment. Neither this Agreement nor any Quote may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that the assignee expressly assumes our obligations hereunder.

10.14 Amendment. This Agreement and any Quote may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that is initiated by us, and that specifically refers to this Agreement or the Quote being amended and is affirmatively accepted in writing (email or electronic signature is acceptable) by you.

10.15 Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

10.16 Severability. If any provision in this Agreement, any Quote, or the Services Guide is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality or unenforceability so that the remainder of that provision and all remaining provisions will be valid and enforceable to the fullest extent permitted by applicable law.

10.17 Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.

10.18 No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an agreement to waive such terms with respect to any other occurrences.

10.19 Merger. This Agreement coupled with the Quote and the Services Guide sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements unless they are explicitly set forth in this Agreement or in a Quote or Services Guide. Our website and marketing materials are provided to you for illustrative or educational purposes only and are not intended (and will not be interpreted as) creating additional duties, requirements, service levels, or promises or guarantees of specific services or specific service results.

10.20 Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.

10.21 Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.

10.22 Governing Law; Venue. This Agreement will be governed by, and construed according to, the laws of the State of Michigan. You hereby irrevocably consent to the exclusive jurisdiction and venue of Macomb County, Michigan, for all non-arbitrable claims and causes of action with us that arise from or relate to this Agreement.

10.23 No Third Party Beneficiaries. The parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.

10.24 Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.

10.25 Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by postal mail, overnight courier, or email as follows: notice will be deemed delivered three (3) business days after being deposited in postal mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx, DHL, or other overnight courier, or one (1) day after notice is delivered by email. Notice sent by email will be sufficient only if the message is sent to the last known email address of the recipient or such other email address that is expressly designated by the recipient for the receipt of legal notices. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.

10.26 Independent Contractor. TCG is an independent contractor, and is not your employer, employee, partner, or affiliate.

10.27 Contractors. Should we elect to use contractors to provide onsite services to you (such as the installation of equipment or the installation of software on local devices), we will guarantee that work as if we performed that work ourselves. For the purposes of clarity, you understand and agree that Third Party Services are resold to you and, therefore, are not contracted or subcontracted services; and Third Party Providers are not our contractors or subcontractors.

10.28 Data & Service Access. Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.

10.29 “Per Seat” Licensing Fees. The Services may require us to purchase certain “per seat” licenses from Third Party Providers (such as, for example, Microsoft, which sells per seat licenses under its “New Commerce Experience” licensing model). Unless otherwise expressly stated in a Quote, per seat licenses cannot be canceled once they are purchased and cannot be transferred to any other customer. If we purchase per seat licenses for you, then those licenses will require a definite term—such as a one (1) or three (3) year term—which may be paid annually or monthly but, in all cases, must be paid in full by you; please see your Quote for details. For that reason, you understand and agree that regardless of the reason for termination of the Services, you are required to pay for all applicable per seat licenses in full for the entire term of those licenses. Provided that you have paid for those licenses in full, you will be permitted to use the licenses until they expire, even if you move to a different managed service provider.

10.30 Counterparts. The parties intend to sign, accept and/or deliver any Quote, this Agreement, or any amendment in any number of counterparts, each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

 

Last Updated: December 2025