TechStar Managed Agreement Terms and Conditions
Effective Date: July 1, 2022
Managed Agreement Terms and Conditions
This Managed Services Agreement (“Agreement”) is by and between TechStar Solutions, Inc., an MN corporation (“we”, “us”, or “TechStar”), and the person or entity signing below as a CUSTOMER (“you” or “CUSTOMER”) and is made and entered into as of the latest date shown in the contract (the “Effective Date”). This Agreement sets forth the terms and conditions upon which TechStar will provide services (the “Services”) to CUSTOMER.
1. SUPPORT SERVICES AGREEMENT
1.1. Services. TechStar shall provide the CUSTOMER with the “Services” as described in the Managed Service Agreement and as described in these terms or any additional agreements for add-on services. All such Services shall be performed during TechStar Standard Business hours and are subject to the terms and conditions of this Agreement. TechStar shall provide CUSTOMERs with 30 days advance written notice of any changes to the terms and conditions of this agreement. CUSTOMERs may choose to opt out of such changes with written notification to TechStar within 30 days of receiving the initial change notification and terminate their agreement without penalty. The CUSTOMER agrees to pay any outstanding charges on the agreement up and until the date of termination.
1.2 Excluded Services. The following services are outside of the scope of this agreement are excluded from services provided as part of this agreement and include but are not limited to:
End User or System support outside of TechStar standard business hours
The cost to bring the Client’s IT Environment up to the Service Provider’s serviceability Standards.
The cost of any IT Assets, replacement parts, equipment, or shipping charges of any kind.
The cost of any software upgrades, renewals, or licenses.
The cost of any 3rd Party Vendor or manufacturer’s support, service fees, incident fees, and assurance fees.
The cost of any and all IT Assets classified as consumables. (toner, ink, service kits, etc.)
Service on parts, equipment, or software not covered by vendor manufacturer warranty or support.
Service, repair, and support made necessary by the alteration or modification of equipment other than that authorized by the Service Provider, including but not limited to configuration adjustments, software installations, upgrades, or any modifications of IT Assets made by anyone other than the Service Provider.
Any and all service, maintenance, and support for IT Assets not covered by this agreement including but not limited to software, hardware, or infrastructure.
Client requested onsite work including travel time to the location.
Failure due to acts of God, building modifications, power failures or other adverse environmental conditions or factors.
Project work and/or major changes.
The cost to repair, replace, or service IT Assets damaged accidentally or maliciously.
IT Assets with damage induced to equipment by environmental extremes. (Water, lightning, etc.)
The cost to replace stolen or missing IT Assets.
Restoration of lost data caused by inadequate backups, uncovered or unsupported backups, systems/hardware failure is outside the scope of this agreement.
Cybersecurity incident support/recovery
Data recovery is not covered and is always considered outside the scope of this agreement.
1.3. Remote Access. Your managed agreement provides 100% remote support and services. TechStar will attempt to resolve issues and/or provide support over the phone or via remote access. If an issue is unable to be resolved in this manner, an onsite resource may be requested to work with a TechStar technician to troubleshoot, confirm connections or perform simple tasks as directed. In the event that the CUSTOMER requests onsite support from a technician TechStar will work to schedule a technician for an on-site visit at our Onsite rates. TechStar reserves the right to dispatch a third party technician for any requested onsite work.
1.4 Covered Items. Your Managed Agreement provides coverage for SUPPORTED USERS: a supported users will have an unique company email address. If a user does not have a company email address they will need to access support through a Supported User. SUPPORTED DEVICES: A support device will be asset tagged and documented in our system to be covered. If a new device is added it must be onboarded prior to being covered by your agreement. SUPPORTED APPS/SERVICES: Supported Apps/Services are company whitelisted items that have been approved and onboarded for use on company devices.
2. CHANGE REQUESTS. On occasion, the CUSTOMER network may need an infrastructure change (Major or Minor) that TechStar can assist in the implementation of. A change is defined as an Add/Change/Remove to an existing component and/or environment. All change requests require client approval whether covered by the Managed Service Agreement or not.
2.1. Minor Change Requests include, but are not limited to the following items; non-major version upgrades to existing devices/applications under management, standard template setup of new PC’s (2.1a), the remote rollout of software upgrades, data migration for a previous employee, adding/moving/disabling switch ports to a VLAN, Service Pack installations and the standard setup of new employees (2.1b).
2.1a Standard Template Setup of new PC’s is defined as a Company determined list of applications and services that will be deployed to all new device setups. It may include predefined optional applications that would appear as selectable items on the device setup request form. The addition of custom requests of applications or settings would result in billable work.
2.1b Standard Setup of new Employees is defined as setup of a users email, user creation in active directory if used by the company, user creation in the IT Support portal, user creation in the Cybersecurity training system. It may include predefined optional items that would appear as selectable items on the company-specific new user setup request form. The addition of custom requests of applications or settings would result in billable work.
2.2. Major Changes Requests are Projects and/or changes, outside of the Minor Change Requests and are NOT included in this agreement and are defined as Out of Scope work. Examples of projects include; a major software version upgrades (Windows Server 2016 to Server 2022), mailbox migration to a new service (in-house exchange to Office 365), a new Branch Office/Location or expansion/remodeling of an existing location, new software setup, and installation. Custom setup of new device(s) that are outside the Standard Template Setup. Projects are normally quoted and approved by the client or shall be considered "Out of Scope" work and are billable at the TechStar Project Rates.
3. CUSTOMER RESPONSIBILITIES Although TechStar strives to be able to service our CUSTOMERs entire IT needs, some responsibilities remain with the client and their staff.
3.1. The CUSTOMER must provide TechStar with all appropriate usernames and passwords required to access network resources (i.e. Administrator usernames and passwords, router telnet passwords) and maintain all necessary media, license keys, and vendor contact numbers and provide access to that information when needed.
3.2. The CUSTOMER must communicate to TechStar all staff changes including the addition and removal of employees and changes in responsibilities of and privileges extended to employees.
3.4. The CUSTOMER must maintain TechStar approved network equipment; including firewalls, managed switches, and wireless access points. The addition of non-approved network equipment is a violation of this agreement.
3.5. Due to the complexity and wide variety of technologies in any network environment, the CUSTOMER must notify TechStar via support ticket of all client-initiated changes to equipment and applications, changes to supported systems made by the CUSTOMER, maintain genuine licensed and vendor-supported Server and Desktop software, maintain active Line of Business application vendor support, maintain TechStar installed tools on supported devices, commit to only managed devices on the secured client network, help maintain and update a Business Continuity Plan.
3.6. It is the responsibility of the CUSTOMER to clearly identify all data the needs to be backed up and it is then the responsibility of the Customer to follow data storage policies defined by TechStar.
4. CYBERSECURITY INCIDENT is defined as, but not limited to the following types of Cybersecurity Incidents; Malware, Phishing and Spear Phishing, Cryptolocker, Ransomware, or Man-in-the-middle attacks.
4.1. To reduce the risk of a cybersecurity incident you should participate in Annual Cybersecurity Training provided in this agreement. It is also recommended to participate in the ongoing Breach Protection Plan (BPP) that is available as an add-on to this agreement. It is also our recommendation that CUSTOMERS maintain a Cybersecurity Insurance Policy to cover the costs of a cybersecurity incident.
4.2. This agreement does NOT cover the costs of services in the event of a cybersecurity incident. TechStar shall not be held liable, directly or indirectly for any damages, losses, or expenses arising out of any cybersecurity incident.
4.3. TechStar will provide support to help restore systems and/or data loss due to a Cybersecurity Incident on a billable basis as needed, outside of this agreement.
4.4. This agreement is not a Cybersecurity Insurance Policy. A Cybersecurity Insurance Policy should be purchased from your insurance provider to provide coverage for your organization.
5. SERVICE FEES AND PAYMENT SCHEDULE
5.1. Initial Setup Fee. TechStar will perform the INSTALLATION as detailed herein or in any attached schedules. The CUSTOMER agrees to pay any installation fees defined herein.
5.2. Monthly Fee. TechStar will provide the services to the CUSTOMER as detailed herein or in any schedules attached to this agreement. The monthly service fee will be invoiced 3 days prior to the first day of the month, allowing you time to review your billing. For services based on a per-unit charge, the CUSTOMER agrees to pay any differences in fees arising from an increase in the units billed, whether they be devices, storage, bandwidth, or any other defined unit.
5.3. Late Payment. Late Payment is defined: (a) for ACH payments, payments refused by the issuing bank, (b) for credit card payments, payments not received (including, for instance, if payment is refused by the credit card issuer or credit card is expired and no new expiration date is provided) within 3 calendar days of the due date; and (b) for invoiced payments, payments not received within standard terms following our sending it via e-mail to your billing liaison. There is a late payment penalty of 5% of the amount past due. In addition, all past due amounts, including the late charge, shall bear interest at the lower of two percent per month or the applicable maximum legal rate. If there is any late payment(s) on your account, TechStar, at its sole discretion and without waiving other rights it may have, may suspend, interrupt, or disconnect the Services on your account, without notice to you.
5.4. Hourly Rate. The hourly rates are defined in the TechStar Billable Rates and Support Procedures by Agreement Type Document (current rates can be viewed at http://rates.techstars.us and are used for billable services outside the scope specifically defined by this agreement or any attached schedule(s) and may be changed with 30-days written notice. The client agrees to verify current rates and minimum charges online prior to requesting any billable service. The hourly rate is for time worked and is not tied to a resolution.
5.5. Standard Business Hours. All rates in this Agreement are based upon services provided during normal business hours defined as Monday through Friday, 7:00 AM to 7:00 PM Central Time.
5.6. Travel Expenses. TechStar will invoice for any additional travel expenses to include parking and tolls.
5.7. Additional Charges. There shall be added to the charges due an amount equal to all taxes based upon all services, equipment, hardware, software, freight, and other applicable charges. This includes all state and local sales and use taxes based on gross revenue, and any taxes or amount in lieu thereof paid or payable by TechStar in respect to the foregoing.
5.8. Billing. TechStar will invoice CUSTOMER for all additional approved services, charges, hardware, software, and taxes on demand according to CUSTOMER terms. All fees for the services provided in this agreement are invoiced in advance and prepaid.
5.9. Payment Terms. All invoices and payments are due NET10 unless other terms are approved by TechStar.
6. AGREEMENT TERM AND TERMINATION
6.1. Term. This Agreement shall automatically renew for successive (30) day terms until such time as TechStar presents the CUSTOMER with a revised agreement. Revised agreements will have a minimum 30 day notice before changes are implemented.
6.2. TechStar reserves the right to audit an agreement in the event of a major project or a significant change in network complexity. In this case, the agreement will be reviewed and may be revised to reflect the changes.
6.3. TechStar will provide services in a competent manner, comparable to industry standards. If TechStar does not provide services in such manner and cannot rectify the problem(s), within thirty (30) days from CUSTOMER written notice in which CUSTOMER identifies the problem(s), CUSTOMER will have the right to terminate the respective Schedule only.
6.4. TechStar, at its sole discretion, may terminate this Agreement if CUSTOMER: (a) becomes the subject of any proceedings under the Bankruptcy Act or other insolvency law, voluntary or involuntary if such proceeding is not dismissed within ninety (90) days; (b) suffers a receiver to be appointed for its affairs or property; or (c) enters into an assignment, or other an arrangement, for the benefit of its creditors, or suffers an attachment against or a seizure of a substantial part of its assets, equipment or its parts and inventories. However, the CUSTOMER’s responsibility for past due amounts shall survive each bankruptcy proceeding provided the acknowledgment of such liability by CUSTOMER will not affect the discharge of CUSTOMER regarding other general creditors; or (d) fails to fulfill the CUSTOMER Responsibilities defined in these terms.
6.5. Termination. TechStar may terminate this Agreement with thirty (30) day written notice to the CUSTOMER, so also the CUSTOMER may terminate this Agreement with a thirty (30) day written notice to TechStar.
6.6. In the case of default by either party under this Agreement, the defaulting party will reimburse the non-defaulting party for all costs and expenses arising from the default, including reasonable attorney fees if the non-defaulting party engages in legal counsel to preserve or enforce such rights under this Agreement, including the collection of any payments due.
6.7. Termination of this Agreement will not adversely affect any right existing as of the effective date of termination. The rights and remedies provided under this Agreement are cumulative and in addition to any other rights or remedies available at law and in equity, and any other contract instrument or paper.
7. OWNERSHIP OF DATA. Backup data being stored both on provided equipment and at the Data Center remains the sole property of the CUSTOMER. If the CUSTOMER chooses to terminate services, TechStar will assist the CUSTOMER in the orderly termination of services at its current rate structure. This could involve copying the backup image to an external drive. CUSTOMER agrees to pay TechStar the actual costs of rendering such assistance to include hardware if necessary.
8. NETWORK AND CUSTOMER MANAGEMENT TOOLS. TechStar reserves the right to select and/or change the tools used to manage and/or monitor CUSTOMER resources at its discretion.
9. TECHSTAR OWNED EQUIPMENT. CUSTOMER agrees that certain items, including but not limited to the firewall used in the managed firewall service shall remain the property of TechStar, and must be returned if requested. CUSTOMER further agrees to cease the use of any technology that remains the property of TechStar upon the termination of this agreement. If any equipment at a CUSTOMER site owned by TechStar is stolen, damaged or destroyed, CUSTOMER must pay the equivalent of the current retail replacement value of the device within 15 days of said event.
10. EQUIPMENT AND FACILITIES. CUSTOMER agrees that TechStar may utilize certain items of CUSTOMER’s equipment and may gain access to certain CUSTOMER facilities. CUSTOMER retains title and ownership in all of the CUSTOMER’s equipment owned by CUSTOMER and utilized by TechStar and must grant authority for TechStar to access CUSTOMER’s facility. Facility access may be denied for any reason at any time, however, if access to facilities is denied, CUSTOMER understands that TechStar may be unable to perform their duties adequately, and if such a situation should exist, TechStar will be held harmless.
11. INSURANCE COVERAGE. TechStar shall maintain at its sole expense commercial general liability insurance for personal injury and property damage for a general aggregate of $1,000,000; worker’s compensation insurance as required by law; and hired and non-owned automobile liability insurance for the combined single limit of $1,000,000. At CUSTOMER’s request, TechStar further agrees to furnish CUSTOMER with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by CUSTOMER.
12. INDEMNITY. Each party hereby agrees to indemnify and hold the other party harmless from and against any and all third party claims, demands, actions, losses, liabilities, costs, and expenses (including reasonable attorney’s fees) arising out of or resulting from the performance, or lack of performance, of each party’s activities under this Agreement except to the extent caused by either party’s negligence or willful misconduct. TechStar shall defend and indemnify CUSTOMER against all claims, damages, etc. arising from TechStar employees’ and agents’ activities at CUSTOMER facilities.
13. FORCE MAJEURE. TechStar shall not be liable for failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by accidents beyond TechStar’ reasonable control, such as, but not limited to fire, flood, or other natural disasters, or, embargo, court order, riot, or other intervention of any government authority, provided that TechStar immediately notifies CUSTOMER of such delay. If TechStar’s performance is delayed for these reasons for a cumulative period of forty-five (45) days or more from the date of such notice, CUSTOMER may terminate this Agreement by giving TechStar written notice.
14. NOTICES All notices herein provided for or which may be given in connection with this Agreement shall be sent via regular mail, or by postage prepaid. If any such notice shall be given by CUSTOMER to TechStar, it shall be addressed to: TechStar Solutions, Inc. 212 W Main Street, Waconia MN 55387
15. REPRESENTATION AND WARRANTIES. We represent and warrant that we (a) have the right, power, and authority to enter into this Agreement and to fully perform all of our obligations hereunder; and (b) will use commercially reasonable efforts to provide all services required of us under the Agreement in accordance with prevailing industry standards. You represent and warrant that you (a) have the right, power, and authority to enter into this Agreement and to fully perform all of your obligations hereunder.
16. DISCLAIMER OF WARRANTIES: LIMITATION OF DAMAGES
16.1. THE EXPRESS, BUT LIMITED WARRANTY IN SECTION 15 ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING OUR SERVICES AND WE AND OUR AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES (IMPLIED OR EXPRESS) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT REGARDLESS OF WHETHER THE ACTION AROSE INSIDE OR OUTSIDE THE UNITED STATES. THERE IS NO WARRANTY AGAINST INACCURACY. THERE IS NO WARRANTY OF SYSTEMS INTEGRATION. THERE IS NO WARRANTY THAT OUR OBLIGATIONS UNDER THIS AGREEMENT WILL FULFILL ANY OF YOUR OR ANY AUTHORIZED USER’S PARTICULAR PURPOSES OR NEEDS.
16.2. WE PROVIDE THE SERVICES “AS IS”. YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES IS AT THE SOLE RISK OF YOU AND EACH AUTHORIZED USER. YOU ACKNOWLEDGE THAT THE USE OF THE SERVICES BY YOU AND EACH AUTHORIZED USER ARE AT YOUR OWN RISK AND THAT THERE IS NO WARRANTY OF INTERRUPTED OR ERROR-FREE SERVICE OR ACCURACY OR RELIABILITY.
16.3. WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST DATA OR CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, COSTS OR PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION ARISING FROM OR RELATING TO THIS AGREEMENT OR ARISING FROM OR RELATING TO THE USE OF THE SOFTWARE WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN US, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE, THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, HOWEVER, CAUSED AND UNDER ANY THEORY OF LIABILITY INCLUDING NEGLIGENCE OR OTHER TORTS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.4. YOU ACKNOWLEDGE AND AGREE YOU HAVE RELIED ON NO WARRANTIES EXCEPT OUR LIMITED EXPRESS WARRANTY IN SECTION 15.
16.5. You agree that the total liability of us and our Affiliates and the sole remedy of you and any End User for any claims regarding our services are limited to your right to terminate this Agreement. Further, should a court nonetheless find that a remedy is not exclusive or that we are for any reason nonetheless liable for money damages, our cumulative liability in connection with this Agreement and our Services, whether in contract, tort, or otherwise, shall not exceed the amount paid to us under this Agreement during the three months preceding the events giving rise to such liability. The existence of more than one claim shall not enlarge that limitation of liability.
16.6. We are not obligated to exercise any control over the content of the information passing through our network except those controls expressly provided in this Agreement.
16.7. Except as expressly provided in the Agreement, you acknowledge that (a) we are in no manner responsible for any action or inaction of any third party, including, but not limited to, hardware or software vendors or Internet service providers; (b) we have not represented that the Services shall be uninterrupted, error-free, or without delay; and (c) we do not and cannot control the flow of data through the Internet, and 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 (or portions thereof) may be impaired or disrupted. ACCORDINGLY, YOU ACKNOWLEDGE THAT WE DISCLAIM ALL LIABILITY RELATED TO EVENTS OUTSIDE OF OUR CONTROL AND/OR IN THE CONTROL OF THIRD PARTIES, AND YOU SHALL HAVE NO RIGHT TO RELY UPON ANY REPRESENTATION OR WARRANTY OF ANY THIRD PARTY IN RESPECT TO THE SERVICES. Further, you acknowledge that, in providing the Services, we shall necessarily rely upon information, instructions, and services from you, your Administrator, employees, and agents, and any other third parties providing computer and communications hardware, software, and Internet services. Except as expressly provided in the Agreement, you fully assume the risk associated with errors in such information, instructions, and services.
17.1. This Agreement shall be governed by the laws of the Commonwealth of Minnesota and constitutes the entire Agreement between TechStar and CUSTOMER with respect to the furnishing of services hereunder. No provision of the Agreement shall be deemed waived, amended, or modified by either party, unless such waiver, amendment, or modification is in writing signed by the party against whom it is sought to enforce the waiver, amendment or modification.
17.2. The foregoing terms and conditions shall prevail notwithstanding any variance with the terms and conditions of any order submitted by the CUSTOMER for service hereunder.
18. CONFIDENTIALITY AND SOLICITATION OF EMPLOYEES
18.1. CONFIDENTIALITY. TechStar recognizes that in the course of performing Services, it may have access to confidential and proprietary information, and trade secrets concerning CUSTOMER’s business and operations, including, without limitation, financial and tax information, business plans, and development strategy, and marketing methodology, (collectively referred to as “Confidential Information”). TechStar recognizes that disclosure of the Confidential Information to competitors; non-authorized third parties or the general public would be detrimental to the Company. Accordingly, TechStar covenants and agrees with CUSTOMER that it will keep secret and treat confidentially the confidential Information and will not disclose any of the Confidential Information to any person or entity nor shall he use the Confidential Information for any purpose other than purposes which serve CUSTOMER.
18.2. SOLICITATION OF EMPLOYEES. CUSTOMER acknowledges that TechStar is involved in a highly strategic and competitive business. CUSTOMER further acknowledges that CUSTOMER would gain substantial benefit and that TechStar would be deprived of such benefit if CUSTOMER were to directly hire any personnel employed by TechStar. Except as otherwise provided by law, CUSTOMER shall not, without the prior written consent of TechStar, solicit the employment of TechStar personnel or induce any TechStar personnel to leave to go to another firm during the term of this Agreement and for a period of two (2) years following the termination or expiration of this Agreement. CUSTOMER agrees that TechStar damages resulting from breach by CUSTOMER of this provision would be impracticable and that it would be extremely difficult to ascertain the actual dollar amount of damages. Therefore, in the event CUSTOMER violates this provision, CUSTOMER shall immediately pay TechStar an amount equal to $50,000 US as liquidated damages and TechStar shall have the option to terminate this Agreement without further notice or liability to CUSTOMER. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs TechStar would incur to identify, recruit, hire and train suitable replacements for such personnel.