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THIS AGREEMENT, by and between Cloud Service Subscribers, henceforth referred to as “Client”, and WebDesk Inc, henceforth referred to as “WebDesk”, is made effective upon signature acceptance and/or logging into the paid subscription services by the Client; WHEREAS, WebDesk is a Cloud Services Provider (CSP) offering services for hosted and managed servers as well as several third party applications and programs such as Microsoft Office, StarBuilder, Dr. Backup and others; WHEREAS, Client desires to contract with WebDesk for the provision of the WebDesk Cloud Services; NOW THEREFORE, for and in consideration of the premises contained herein and good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
SERVICE OBJECTIVE AND SCOPE
WebDesk strives to provide Cloud Services on a 24X7 basis with 99.99% uptime. This agreement and the conditions herein reflect that commitment. WebDesk utilizes multiple ISPs to ensure availability of its cloud services. WebDesk Cloud Services uptime is not affected by ISP uptime when considering SLA obligations as ISP uptime and QOS is external to WebDesk services and outside the control of WebDesk.
PERIOD OF SERVICE
This Agreement shall be effective as of the date of this Agreement, execution by Client, unless sooner terminated in accordance with the terms hereof, and shall be for an initial term of thirty days. Client and WebDesk reserve the right to review this agreement annually.
CONTINUANCE / AUTOMATIC RENEWAL
This Agreement shall perpetually renew automatically at the end of the prior Agreement term for a period of one (1) month (referred to as “month to month”) unless WebDesk or the Client affirmatively terminates it in accordance with the conditions set forth in this Agreement.
WebDesk reserves the right to renegotiate rates based on additions of users, applications, software features, hardware support requirements, usage volumes and/or services as well as modify this Agreement (or any portion thereof) with a thirty (30) day notice. For purposes of this Agreement, the “Network” or “Platform” shall include all resources dedicated to providing said Cloud Services to the Client.
Client is purchasing a subscription granting access to the WebDesk Cloud Services under this Agreement for the purchase price agreed upon, a separate and additional document. Said purchase price shall be paid in monthly installments with the first installment due upon execution of this agreement. Each payment thereafter shall be due the last day of each calendar month. Services provided hereunder shall be assessed against this Account as provided herein.
CHARGES FOR SERVICE
Services shall be charged against the Client’s Account in accordance with the terms and conditions outlined in the Proposal for Cloud Services and herein. All supplemental services provided by WebDesk which are outside the terms of this Agreement, including but not limited to, service and/or maintenance performed on the Client’s equipment and services in excess of the services purchased herein, shall be charged to Client as an additional charge in accordance with the terms and conditions as outlined herein. Any additional billing charges will be invoiced at the end of each month, with payment expected upon receipt of invoice, unless paid by credit card or otherwise specified by WebDesk. Client shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the services provided pursuant to this Agreement. Without limiting the foregoing, Client shall promptly pay to WebDesk an amount equal to any such taxes actually paid or required to be collected or paid by WebDesk. WebDesk reserves the right to refuse or suspend service under this Agreement in the event Client has failed to pay any invoice within five (5) days of invoice due date, whether it be an invoice for services provided under this Agreement or any other agreement between the parties.
CONDITIONS OF SERVICE
WebDesk Cloud Services are available under this Agreement 24X7, excluding scheduled maintenance hours, serviceability requirements, and site environmental conditions. WebDesk reserves the right to reduce resources of the Cloud Services for the purpose of conducting a diagnostic test of the platform. Unless stated otherwise, said maintenance shall be conducted outside standard EST and PST business hours (8am EST to 8pm PST). Priority Response to be given during normal business hours, in the order in which the request was received. WebDesk shall not be responsible to Client for loss of use of the Cloud Services or for any other liabilities arising from alterations, additions, adjustments, or repairs which have been made to the platform by authorized representatives of WebDesk. WebDesk reserves the right to suspend or terminate this Agreement, if in its sole discretion, conditions at the service site pose a health or safety threat to any WebDesk representative.
SERVICE RESPONSIBILITY OF WEBDESK
WebDesk will provide Cloud Services on a 24X7 basis in accordance with our Conditions of Service listed above, or unless otherwise specified and/or notified. Cloud services are provided via an Internet Service Provider (ISP). WebDesk is not responsible for the condition and/or availability of internet services provided or maintained by 3rd party ISPs.
HOLIDAYS OBSEVERED AND SERVICE SUPPORT HOURS
New Year’s Day January 1 On-call Emergency - billable
Memorial Day Last Monday in May On-call Emergency - billable
Independence Day July 4th On-call Emergency - billable
Labor Day 1st Monday in September On-call Emergency - billable
Thanksgiving Day Fourth Thursday in November On-call Emergency - billable
Christmas December 24th and 25th On-call Emergency - billable
Supplemental services are defined as service required by the client that meets the following criteria: a) Services for items and equipment owned by the Client. b) Configuration of equipment or services owned by the Client. c) Import/export of client data and/or email either to or from the WebDesk Cloud platform. If supplemental services are requested by the Client outside of normal business hours, WebDesk shall provide such service subject to the availability of its representatives, according to the terms and conditions set forth in this Agreement. WebDesk shall provide supplemental services as defined in this agreement during business hours, and in accordance with service policies then in effect. WebDesk representatives shall have, and the Client shall provide, full access to devices outside the cloud platform, in addition to information necessary to carry out the services. Cost of Client site consumables, replacement parts, hardware, software, network upgrades, and associated services are outside the scope of this agreement. WebDesk will provide consultative specifications, IT Engineering/Design, sourcing guidance and/or Time and Material/Project offerings for an additional fee. Offsite Service includes services provided by an employee or contracted servicer of WebDesk. Distances beyond 15 miles of dispatch will incur the appropriate mileage and/or contract charges. The supplemental support services herein are contingent on Client’s permission of WebDesk having secure remote access to Client’s desktop via the WebDesk HelpDesk and/or physical onsite contact. Additional charges apply. Support services required or requested outside the scope of this agreement may not be exchanged for days or services within this agreement. “Outside of scope” support services are available and will be provided on either a Time and Material, or Project basis.
HOW TO CONTACT THE HELPDESK FOR SERVICE
Telephone: (772)-774-8797, option 2
WHAT YOU SHOULD DO BEFORE CONTACTING THE WEBDESK HELP DESK
When you contact WebDesk either by web, email or phone please ensure to include the following information:
Your name, location, and specific contact information.
A detailed description of the problem and its severity (i.e., unable to access application, not receiving email, etc.). The more information you provide the better we can serve you.
Any error messages at the time the problem occurred. Screen shots welcome.
The applications you are working with.
Any changes made recently to local devices. (Updates, applications, VPNs, etc).
Client agrees to maintain their WebDesk Cloud subscriptions and keep them in good standing in accordance with the agreement herein. Failure to do so may result in suspension or discontinuance of services. Client agrees to inform WebDesk of any modification, installation, or service performed on the Client device by individuals not employed by WebDesk regarding any support request. It is the responsibility of the Client to promptly notify WebDesk of any events/incidents that could impact the services defined within this agreement and/or any supplemental service needs, for WebDesk Help Desk to respond in a timely manner, regarding any service incident. It is the responsibility of the Client to purchase and maintain off-site data backups for all their company and user data. This service can be purchased and configured for Client’s account by contacting your WebDesk sales representative.
Additional limitations and conditions set forth in this Agreement are as follows: WebDesk shall not be held liable for interruptions in service due to ISP incidents as these incidents are beyond the scope and control of WebDesk. WebDesk is only responsible for applications and services installed on its Cloud platform. Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. WebDesk support services within this agreement are predicated upon the Client’s support and commitment to adhering to the time/scheduling for network device reboots. Virus mitigation within the scope of this agreement is limited to the WebDesk cloud platform and does not include virus or SPAM protection on the Client’s local device(s). WebDesk will not be liable for worms, viruses, Trojans, etc., and damages resulting from them. Restoration of lost data caused by customer deletion is outside the scope of this agreement. WebDesk maintains redundancies and daily backups of all data and emails. However, WebDesk shall be held blameless for the loss of any such data. Off-site automated backups are recommended and can be purchased for your WebDesk Cloud data through our recommended 3rd party backup affiliate. Please contact your Sales rep for details.
WARRANTIES AND DISCLAIMERS
WebDesk makes no warranty, express or implied, and all warranties of merchantability and fitness for a particular purpose are expressly excluded. In no event shall WebDesk or any of its Directors, Employees or Other Representatives be liable for any special, incidental, indirect, or consequential damages of any kind including, without limitations, those resulting from loss of data, income, profit, and on any theory of liability, arising out of or in connection with the services or use thereof even if it has been advised or has knowledge of the possibility of such damages. The Client shall assume full responsibility for the overall effectiveness and efficiency of their local operating environment in which the Client is to function.
Client hereby agrees to indemnify and defend at its sole expense: WebDesk, its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon Client’s use of all services, software or hardware provided or serviced hereunder, including, but not limited to, claims based on software licensing violations, copyright infringement, trademark infringement and patent infringement. In addition, Client agrees to pay any judgment and costs associated with such claim.
OPT-OUT / TERMINATION
WebDesk and/or Client shall have the right to terminate this Agreement under any of the following conditions: If one of the parties shall be declared insolvent or bankrupt. If a petition is filed in any court and not dismissed in ninety days to declare one of the parties bankrupt and/or for a reorganization under the Bankruptcy Law or any similar statute. If a Trustee in Bankruptcy or a Receiver or similar entity is appointed for one of the parties. If the Client does not pay WebDesk within thirty days from the due date and/or otherwise materially breaches this agreement. If WebDesk fails to perform its obligations under this agreement and such failure continues for a period of thirty days after written notice of the default, the Client shall have the right to terminate this agreement. Either party may terminate this agreement upon thirty days (30) written notice from expiration date of the current term. Upon termination, all hardware and software installed by WebDesk, which was required to conduct WebDesk services, shall be returned to their respective parties and will be surrendered and returned at end of the agreement.
In the event Client terminates this agreement for any reason other than a breach of the terms herein, Client shall be entitled to a refund of any monies extended in advance of the month or part thereof for which services by WebDesk were last provided.
INDEPENDENT ENGAGEMENT / NON-HIRE
Because employees are one of our most valuable assets, policy and professional ethics require that our employees not seek employment with, or be offered employment by, any Client during the course of engagement and for period of 1-year thereafter. Your acceptance of this agreement confirms your organizations agreement to adhere to this professional standard of conduct. Client acknowledges that WebDesk is involved in a highly strategic and competitive business. Client further acknowledges that Client would gain substantial benefit and that WebDesk would be deprived of such benefit, if Client were to directly hire any personnel employed by WebDesk. Except as otherwise provided by law, Client shall not, without the prior written consent of WebDesk, solicit the employment of WebDesk personnel during the term of this agreement and for a period of one (1) year following expiration of this agreement. Client agrees that WebDesk damages resulting from breach by Client of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event Client violates this provision, Client shall immediately pay WebDesk an amount equal to 50% of employee’s total annual compensation, as liquidated damages and WebDesk shall have the option to terminate this agreement without further notice or liability to Client. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs WebDesk would incur to identify, recruit, hire and train suitable replacements for such personnel.
This Confidentiality, Privacy and Compliance portion of this agreement is in addition to other terms and conditions set forth in any and all contracts currently existing or hereafter created between Client and WebDesk. This agreement shall under no circumstances be deemed to alter any such contract except as specifically provided below. WebDesk acknowledges that in the course of providing services to said Client, WebDesk may learn from Client certain non-public, personal, and otherwise confidential information relating to Client, including its customers, consumers, or employees. WebDesk shall regard any and all information it receives which in any way relates or pertains to Client, including its customers, consumers or employees as confidential. WebDesk shall take commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose other than purposes which serve the Client or as expressly and specifically permitted in writing by Client or as required by applicable law. Client acknowledges that it also has responsibility to keep records and information of its business, customers, consumers, and employees, confidential. Client also acknowledges that all information and services, consulting techniques, proposals, and documents disclosed by WebDesk, or which comes to its attention during the course of business, and provided under this agreement, constitute valuable assets of, and confidential and/or proprietary to WebDesk, and shall not be shared with any parties outside of this agreement. This confidential provision shall survive termination of this agreement and any other agreements between Client and WebDesk.
Sole Agreement: This Agreement constitutes the entire and only understanding and agreement between the parties hereto with respect to the subject matter hereof and, except as expressly set forth herein, may be amended only in writing, signed by each of the parties hereto. Severability: If a court of competent jurisdiction determines that any terms or provision of this agreement is invalid or unenforceable; such determination shall not affect the validity or enforceability of the remaining terms and provisions of this agreement, which shall continue to be given full force and effect. Captions: The captions of the paragraphs of this agreement are for convenience only and shall not affect in any way the meaning or interpretation of this agreement or any of the provisions hereof. Binding Effect: This agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their heirs, legal representatives, personal representatives, administrators, successors, and permitted assigns, as the case may be. Waiver: Any failure of either party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions shall not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failure. Governing Law: Notwithstanding the place where this agreement may be executed by any party, this agreement, the rights and obligations of the parties, and any claims and disputes relating hereto shall be subject to and governed by the laws of the State of Florida as applied to agreements among Florida residents to be entered into and performed entirely within the State of Florida, and such laws shall govern all aspects of this agreement. The parties agree to submit to the personal jurisdiction and venue of the state and federal courts in the State of Florida, in the Judicial Circuit where WebDesk has its principal office, for resolution of all disputes and causes of action arising out of this agreement, and the parties hereby waive all questions of personal jurisdiction and venue of such courts, including, without limitation, the claim or defense therein that such courts constitute an inconvenient forum. Assignment: This agreement and the rights and duties hereunder shall not be assignable by either party hereto except upon written consent of the other. Force Majeure: WebDesk shall not be liable for any problems due to external causes beyond its control including, but not limited to, terroristic acts, natural catastrophe, fire, flood, or other acts of God, and/or power failure, virus propagation, improper shut down of the Network and related Network Systems/Services such as, but not limited to, those provided by Internet Service Providers (ISP). Attorney Fees: In any action between the parties to enforce any of the terms of this agreement, the prevailing party shall be entitled to recover all expenses, including reasonable attorney fees.
The WebDesk Cloud platform is designed to provide: Remote access to applications through the WebDesk website. WebDesk will leverage their cloud platform to provide 24X7 application and/or server availability. Priority Response Times: as outlined in this agreement. Emergency work will be conducted as required to resolve issues that are impacting business operations.
Support external to the WebDesk cloud platform (clasified as supplimental) can be provided to end users on credit card, time and material or account basis: WebDesk Help Desk Support – end user support provided through our website at www.gowebdesk.com
Our HelpDesk provides a point of support for your end users when they have an issue or question. WebDesk staff members are available during business hours to log issues and support your team. Client may generate a service request by contacting the HelpDesk via the website listed above, email or phone. We commit to responding to your question promptly. If you are contacting us to escalate a service outage, we will route the call to our technical center for prompt attention. PLEASE NOTE: any support services performed that are internal WebDesk issues are never billed to our clients. Help Desk services can also be utilized to provide service requests outside the scope of the WebDesk cloud platform, such as client device issues. These services are provided with an additional cost to your subscription(s).
99.99% NETWORK UPTIME GUARANTEE
In the event that network connectivity for your contracted services is unavailable for any amount of time outside of the Scheduled/Announced Maintenance periods in any calendar month, one full day’s service credit will be awarded for each hour of downtime. The maximum credit awarded in any calendar month will not exceed 50% of that month’s service fees.
99.99% POWER UPTIME GUARANTEE
In the event that power for your contracted services is unavailable for any amount of time outside of the Scheduled/Announced Maintenance periods in any calendar month, one full day’s service credit will be awarded for each hour of downtime. The maximum credit awarded in any calendar month will not exceed 50% of that month’s service fees.
WebDesk Inc guarantees that the average monthly latency for round-trip transmissions will be 95 milliseconds or less within the continental United States. Latency is calculated by averaging measurements between various points on the WebDesk Inc network during the calendar month. If our average latency exceeds 95 millisecond over a one month period, one full week’s service credit will be awarded.
Customer shall not receive any credits under this SLA in connection with any failure or deficiency if caused by or associated with: Circumstances beyond WebDesk Inc reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications, upstream providers or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the service level agreement. Failure of access unless such failure is caused solely by WebDesk Inc. scheduled and emergency maintenance and upgrades. DNS issues outside the direct control of WebDesk Inc.
All claims for credit under this guarantee must be submitted to the WebDesk Inc via Help Desk ticket and should be received no later than 7 days after the incident to which they relate. Customer must be current on all invoices in order to receive credit and all SLA credits will be applied to the next month’s invoice.
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