Managed Service Agreement Terms & Conditions
Payment of Services
Any start-up fees and the first month’s service fees are due and payable with the signing of this Agreement. Monthly service fees are due during the Service Period and shall be paid monthly in advance by the first of each month, in advance for that month. LeafTech shall provide invoices for each Managed Services payment due hereunder and at reasonable times and shall not unduly delay such invoicing. Service is subject to interruption and disconnection by LeafTech for nonpayment of monthly service fees or any other fees due and payable by Client, and LeafTech reserves the right to seek all other remedies at law. The Client agrees that it will pay a rate for the services as set out in Exhibit “A” hereto. Payments can be made either via check and to be made payable to LeafTech Consulting, LLC.
All payments via check should be mailed to us at the following address:
7936 E Arapahoe Court
Centennial, CO 80112
Payments for invoices that are not received within 30-days from the date of invoice will be subject to a 1.5% penalty per calendar month.
LeafTech provides all services on an as is basis. In providing its services, LeafTech, its officers, directors, principals, members, managers, employees, subcontractors, representatives, agents, successors and assigns make no representations or warranties except as expressly stated herein and expressly disclaim all implied warranties, including, without limitation, warranties of merchantability, or fitness for a particular purpose, and shall not be liable for any consequential, incidental, special, exemplary, indirect, punitive or multiple damages whatsoever, including but not limited to for lost profits, lost revenues, lost data, loss of security, loss of privacy, costs of recreating lost data, cost of procuring or transitioning to substitute services, or loss of use, resulting from any claim or cause of action based on LeafTech’s services or third party services provided or passed through by LeafTech or by any other party in conjunction with LeafTech’s services.
Without limiting the foregoing, LeafTech shall not be liable for any damages resulting from the use or inability to use its services, reliance on its services or on information obtained therefrom, interruptions of service, breach, compromise, unauthorized access to any records, files, data, systems, or other assets, valuables and resources; errors, defects, viruses, malware, delays in operation or transmissions or any other failure of performance or business function. Further, except in the event of willful misconduct by LeafTech, LeafTech shall not be liable for any direct damages resulting from the loss of any of Client’s data or third party data, breach of security or loss of privacy of data on Client’s systems or third party systems that may occur on systems installed, serviced, and/or managed by LeafTech, or any direct or indirect damages resulting therefrom; the malfunction, performance or compromise of any system, network or other resource related to or associated with in any capacity or by any theory with LeafTech services, and any Client or third party damages, claims, losses or expenses resulting therefrom; any personal injury (whether of a physical or psychological nature) or death of any person, whether associated with Client or otherwise, that may in any capacity or by any theory be associated with services provided by LeafTech, and any Client or third party damages, claims, losses or expenses resulting therefrom.
Limitation of Liability
Both parties agree that it is impossible to guarantee the trouble-free performance of computer hardware, software, networks, environments, security and systems, the security, privacy, specific functionality or performance of any free-standing or integrated system or resource; the reliability, applicability or performance of any technology or technology-related asset; the applicability, outcome or performance of any training or the behavior of any human resources; whether procured, provided, installed, managed, supported, administered, trained and/or supervised by LeafTech, or in any way associated with LeafTech services or otherwise. Therefore, Client and LeafTech agree to certain further limitations of liability and damages.
To the extent not prohibited by applicable law, LeafTech’s maximum aggregate and cumulative liability under this Agreement for any and all losses, claims, damages, expenses, attorney and expert fees or liability of any kind, including but not limited to claims of breach of contract, breach of warranty, negligence (including strict liability), whether in contract or in tort, or under any other legal theory, is limited to the amount in fact paid by Client hereunder for the two (2) months immediately preceding the event giving rise to such loss, damage, claim, or liability. In no event shall LeafTech be liable for any consequential, incidental, special, exemplary, indirect, punitive or multiple damages in connection with or arising out of this Agreement, (ii) any accompanying or associated MSA, whether signed concurrently or not, and, (iii) any other agreement between Client and LeafTech that incorporates this Agreement; including but not limited to claims or damages involving loss of business, revenue, profits, use, data, good will, reputation, or other economic advantage, however caused, and regardless of the legal theory of liability, even if LeafTech and/or Client knew, or should have known of the possibility thereof. Client and LeafTech agree that the provisions of Section “No Warranty” and this Section “Limitation of Liability” of this Agreement shall constitute Client’s sole and exclusive remedy with respect to (i) LeafTech’s services and any claims or actions arising therefrom, and, (ii) any third party services passed through or provided by LeafTech or by any other party in conjunction with LeafTech’s services, and any claims or actions arising therefrom; even if a mediator, arbitrator, or court of competent jurisdiction finds that such sole and exclusive remedy has failed its essential purpose.
Client agrees to indemnify, defend, and hold harmless LeafTech, and its officers, directors, principals, members, managers, employees, subcontractors, agents, representatives, successors and assigns from and against any damage, claim, loss, expense (including reasonable attorneys’ fees and damage to any person or property), occurring as a result of (i) Client’s use of or inability to use LeafTech’s services, or use or inability to use by those authorized by Client of LeafTech’s services; (ii) Client’s handling, storage, transmission or possession of information, data, messages or other content or assets on LeafTech’s systems or network, on Client systems or network that are installed, managed or otherwise serviced by LeafTech, or on third party systems and networks that LeafTech uses to provide its services, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission or possession of information that contains viruses, malware or other destructive code, media, or any unlawful content; (iii) Client’s or third parties’ reliance on LeafTech’s services or on information obtained therefrom; (iv) Client’s breach of any software licensing requirements of third parties; (v) Client’s failure to comply with any provision of this Agreement; or, (vi) Client’s failure to obtain permits, licenses, or consents that Client may be required to obtain to enable LeafTech to provide its products or services (e.g., landlord permissions, wiring permits, etc.)
LeafTech agrees to indemnify and defend Client, its directors, officers, employees, agents and successors against third party claims enforceable in the United States alleging that LeafTech’s services as provided infringe any third party United States patent or copyright or contain misappropriated third-party trade secrets. LeafTech’s obligations under this section will not apply to the extent that the infringement or violation is caused by (i) functional or other specifications that were provided or requested by Client, or (ii) Client’s continued use of infringing services after LeafTech provides reasonable notice to Client of the infringement. For any third-party claim that LeafTech receives, or to minimize the potential for a claim, LeafTech may, at its option and expense, either: (i) procure the right for Client to continue using the services in question; (ii) replace or modify the services with comparable services; or (iii) terminate the services. The provisions of this Section “Indemnity” state the entire liability and obligations of the indemnifying party, and the exclusive remedy of the indemnified party, with respect to any of the claims identified herein.
Neither party to this Agreement shall have liability or responsibility to the other party for any delay, failure to perform, service interruption, outage, damage, malfunction, or any consequence thereof or damage resulting therefrom, due to any circumstance beyond the party’s reasonable control including, but not limited to, inclement weather, climate change, resource shortages, all acts of nature and acts of God, strikes, civil disturbances, riots, terrorist acts, unavailability of or delays in goods or services needed from third parties including but not limited to third party hardware, software, data center, collocation, and cloud service providers, interruption or outage of or delay in telecommunications including the public Internet, voice lines, data lines, or any telecommunications equipment or service, transportation, delivery, power outages, electrical or other utility services, failure of third party hardware, software or services, or any acts or omissions of any third parties.
Because Client has entered into this Agreement based on the particular abilities of the consultants, LeafTech shall not be entitled to assign this Agreement or any of its rights or obligations hereunder, except to its affiliates, subsidiaries or successor entities, unless the written consent of Client shall first have been obtained, which consent will not be unreasonably withheld. Any attempted assignment or delegation without the required written consent shall be void and a breach of this Agreement.
Both LeafTech and Client acknowledge that each has confidential and proprietary information including, without limitation, its business practices, methods and operations, customer lists, consultant lists, technical data, software applications, financial information, trade secrets and other information reasonably related to the continued business of the party (“Confidential Information”) and further acknowledges that disclosure of such Confidential Information to third parties would cause such party irreparable harm.
Confidential Information shall not include information which at the time of disclosure is or thereafter, becomes part of the public domain through no fault of the party charged with disclosure: was in possession of the party charged with disclosure at the time of disclosure and was not acquired directly or indirectly from the other party, or was rightfully disclosed to the party charged with disclosure by a third party who was not under obligation of confidentiality to the other party with respect to such information.
Except as may be required by law, each party will keep in confidence all confidential information of the other which may be learned in the course of this Agreement.
The parties acknowledge that the consultants will have access to certain confidential information of Client. Therefore, LeafTech agrees that it will require each consultant to execute an agreement acknowledging his or her obligations directly to the Client with regard to confidentiality in the form acceptable to Client. LeafTech agrees to provide Client with a copy of the fully executed confidentiality agreement at or prior to the time each consultant commences his or her services to Client.
Non-Solicitation of Employees or Consultants
The parties agree that during the term of this Agreement and for a period of one (1) year after the termination of this Agreement, they will not induce directly or indirectly, any person who is at the time employed by or an independent contractor with the other party to leave such employment or contractual relationship. During that time, in the event either party desires to hire a current employee or contractor of the other party, the hiring party will compensate the other party with liquidated damages for each employee so hired at a rate of 25% of consultant or employee first-year salary. This liquidated damages provision is in addition to, and without limiting or affecting in any way, a party’s right to pursue injunctive relief as set forth in Section “Injunctive Relief”. The parties agree that said liquidated damages are not a penalty, but have been negotiated and agreed upon since, in the event of a breach of Section “Confidential Information”, the actual amount of damages incurred would be difficult to ascertain.
Both parties acknowledge that a breach of Sections “Confidential Information” and “Non-Solicitation of Employees or Consultants” with regard to Confidentiality and Non-Solicitation of employees would result in immediate and irreparable injury to the non-breaching party and that monetary damages would not be an adequate remedy. The parties, therefore, acknowledge that the non-breaching party shall be entitled to injunctive relief to enforce these provisions in addition to any and all other legal and equitable remedies available to the non-breaching party.
The parties agree to submit any disputes regarding this Agreement exclusively to binding arbitration by the Judicial Arbiter Group of Denver, Colorado. This Section shall not operate to limit either party’s right to enforce, to the extent necessary, a Judicial Arbiter Group judgment in a court of law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its choice of law provisions. With respect to claims not properly subject to the exclusive arbitration clause above, the parties hereby exclusively and irrevocably submit to, and waive any objection against, the personal jurisdiction and venue of the United States District Court for the District of Colorado, and the state courts of the State of Colorado located in the County of Denver, Colorado. The closing party in any action to enforce any of the confidentiality ownership, non-competition, non-solicitation, or any other obligations herein, promptly shall in addition to all other remedies pay the prevailing party reasonable attorneys’ fees, court costs and other expenses of suit, arbitration or otherwise.
This Agreement shall be governed by; and construed under the laws of the State of Colorado. In the event of any breach or threatened breach of this Agreement, both parties irrevocably submit to the jurisdiction of a court of competent jurisdiction in Denver County, Colorado, and irrevocably agrees that venue for any action or proceeding shall be in the County of Denver, State of Colorado. Both parties waive any objection to the jurisdiction of these courts or to venue in Denver County, State of Colorado.
If any provision of this Agreement shall be held, declared or pronounced void, voidable, invalid, unenforceable or inoperative for any reason, by any court of competent jurisdiction, government authority or otherwise, such holding, declaration or pronouncement, shall not adversely affect any other provision of this Agreement, but shall otherwise remain in full force and effect.
Any earlier Agreements between the parties, whether written or oral, relating to the subject matter of this Agreement, are hereby terminated, canceled, and of no further effect.
This agreement contains the entire agreement of the parties with the exception of the possible addition of subsequent Exhibit(s) to bring additional consultants and/or services under the terms of this Agreement. There are no terms or conditions other than those stated in this Agreement.
This Agreement may not be modified or amended, nor may any term or provision be waived or discharged except in writing signed by the party against whom such amendment, modification, waiver or discharge is sought to be enforced. The waiver by any party of any provision of this Agreement will not constitute or operate as a waiver of any other breach of such provision or any other provision, nor will any failure to enforce any provision operate as a waiver of such provision of any other provision of the Agreement.
The parties consent and agree that any dispute relating to this Agreement or breach thereof which cannot be settled by negotiation between the parties shall be submitted to and resolved by binding arbitration in accordance with the Colorado Arbitration Act. This arbitration shall not restrict the remedies made available in Section “Non-Assignment.” There shall be one arbitrator selected by the parties. Any judgment upon the reward rendered by the arbitrator may be entered in any court having jurisdiction thereof.
In the event that a dispute of any nature arises pertaining to this Agreement, including but not unlimited to its interpretation, enforcement applicability, or any party’s performance hereunder, and the dispute has not been resolved by negotiation or agreement between the parties, and the arbitration or litigation is brought to resolve the matter, the party who prevails or substantially prevails shall be awarded, in addition to any other relief which may be awarded its reasonable costs and attorney fees, regardless of which party instituted the litigation or arbitration.
The headings contained in this Agreement are for convenience only and do not control or affect the meaning, construction, or interpretation of any provision hereof.