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1. Price and Payment Terms
1.1 Agreement to Pay. Client hereby agrees to pay (a) all Service Charges and (b) the costs of all other services and fees requested by Client but not included in the scope of this Agreement, including but not limited to travel time, equipment, taxes, and other associated costs, on a Time and Materials basis at Sage' published rates in effect from time to time.
1.2 Due Date; Late Charges. All payments from Client are due immediately upon receipt of Sage’ invoice, but no late fees or interest will be charged if payment from Client is received by Sage within 30 days of the date of the invoice. The late charge will be 3% per month, or the maximum amount otherwise allowable by law. If Client does not object to charges on any invoice within 30 days of the date on the invoice, that invoice will be deemed accepted by Client.
1.3 Lien; Right to Foreclose and Repossess. In order to secure Client's obligation to pay to Sage the purchase price of all equipment and other tangible property that Sage sells to Client hereunder (the "Purchased Assets"), Client hereby (a) grants to Sage a first-priority purchase-money lien in all such Purchased Assets equipment, (b) agrees that Sage may file a Form UCC-1 Financing Statement to perfect such lien, (c) further agrees that Sage shall have and may exercise with respect to such lien all of the rights of a secured creditor under Article 9 of the Uniform Commercial Code as codified and in effect from time to time in the State of California, and (d) further agrees that in addition to all other rights that Sage may have hereunder and under applicable law, Sage shall have the right and power upon ten (10) days' advance written notice to Client to repossess all such Purchased Assets for which Client fails to pay the full purchase price.
1.4 Travel. SAGE’s standard travel charges will apply to each visit to Client’s location: car rental $50/day, per diem$35/day, Hotel based on actual cost, airline based on actual cost.
2. Service Hours
Described as Standard Business Hours or Emergency Hours, Sage recognizes the following definitions for each as it relates to references for each in this Agreement.
2.1 Standard Business Hours – The hours between 7:00 a.m. and 6:00 p.m., Pacific Time, Monday through Friday excluding published Holidays provided in this agreement.
2.2 Emergency Hours – The hours between 6:00 p.m. and 7:00 a.m., Pacific Time, Monday through Friday. Weekends, and published Holidays are also considered emergency hours. Services performed during Emergency Hours will be subject to additional fees. Additional fees will not apply when Sage requests the option to perform services during Emergency Hours for the convenience of Sage.
2.3 Holidays – Ten per year in accordance with Sage' internally observed holidays, including but not limited to New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
3. Service Delivery Methods
Includes telephone support, remote access, scheduled onsite visit, and non-scheduled onsite visit. A description for each as it applies to this Agreement are as follows:
3.1 Telephone Support – A Sage technical resource will contact Client via telephone in order to resolve issues that Sage determines can be resolved in this manner.
3.2 Remote Access – A Sage technical resource will connect to Client’s network via a Client provided full time internet connection in order to resolve issues that can be resolved in this manner.
3.3 Scheduled Onsite Visit – Sage may elect to dispatch a technical employee to Client's premises if Sage in its discretion determines that a matter cannot be properly resolved remotely.
3.4 Unscheduled Onsite Visit – A Sage technical resource will be dispatched onsite as required by Critical Issues or Priority Level I service requests requiring expedited Standard Business Hours support or Emergency Hours support.
4. Exclusions
The following services are specifically excluded from coverage under this Agreement, unless stated otherwise in this Agreement, and if performed shall be charged to client using SAGE’s then-current labor rates as detailed in the Billing Policy document or at a rate or project fee to be mutually agreed at the time. Client approval will be required before performing any tasks not covered by this Agreement.
4.1 Major system changes or upgrades including but not limited to; server replacement, operating system upgrade/replacement, additions of remote locations, email upgrade/replacement, installation of workstations, applications, and/or printers. Note: For all-inclusive contracts, Sage reserves the right to stop troubleshooting the problem in favor of rebuilding or replacing the failing equipment. The rebuilding and/or replacement of this equipment will be performed Sage' then- current labor rates as detailed in the Billing Policy document or at a rate or project fee to be mutually agreed at the time.
4.2 Hardware repairs and replacement.
4.3 Modifications to third parties' software used by the Client.
4.4 Application development, modifications, or design work.
4.5 Any problems caused by third-party or client resources performing unauthorized service or changes to the network environment.
5. Service Level Objectives (SLO)
After a request is received by the help desk, some initial troubleshooting will be done, if the problem cannot be resolved instantly it will be assigned a priority. Our priority system is based on overall company impact and is designed to be fair, practical, and cost effective. Below is a guide to what each Priority level means in terms of time.
5.1 Emergency: An "emergency" classification means that the incident has a severe overall business impact such as revenue-generating web servers, network, email server, or hardware failure. Sage will exercise commercially reasonable efforts to cause an engineer to begin working on these incidents within two (2) hours and continue until it is resolved. Emergency Service is available 24 hours a day.
5.2 High: A "High Priority" classification means that the incident has a high business impact or high individual impact such as email application not working or personal computer hardware failure. An engineer will begin working on the incident within 4 business hours and continue until the incident is resolved.
5.3 Medium: A "Medium Priority" classification means that the incident has a moderate business impact or moderate individual impact such as printing issues or application instability. Medium Priority incidents will be assigned to an engineer who will begin working on them within 8 business hours and may schedule a time to resolve the problem at the soonest possible date.
5.4 Low: A "Low Priority" classification means that the incident has a low business or individual impact such as minor printer problems, application installations, new user creation or any activity that can be scheduled for the most convenient time without creating user hardship. A low priority incident will be assigned to an engineer who will schedule a resolution to the incident at a time that Sage determines to be appropriate.
5.5 Hold: A Hold Priority indicates that the incident cannot be worked on because Sage is waiting for information from the user or Client or for hardware from a vendor.
6. Warranty and Limitation of Liability
6.1 Limited Warranty. Sage warrants that the Services delivered under this Agreement shall be delivered in a reasonably prompt and professional manner. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, SAGE HEREBY DISCLAIMS ALL WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE DELIVERY OF SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 LIMITATION OF LIABILITY. Notwithstanding any other provision of this Agreement to the contrary:
(a) LIMITATION ON TYPES OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT OR AS A RESULT OF ANY BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR ANY OTHER DAMAGES SUFFERED IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT, FOR ANY LOSS OF DATA, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS.
(b) Limitation on Amount of Sage' Liability. IN NO EVENT SHALL SAGE' LIABILITY FOR ANY BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR FOR ANY OTHER DAMAGES SUFFERED BY CLIENT AS A RESULT OF SAGE' PERFORMANCE OF (OR FAILURE TO PERFORM) ITS SERVICES EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO SAGE PURSUANT TO THIS AGREEMENT FOR SUCH SERVICES.
6.3 No Solicitation or Hiring of Sage Employees
(a) Background. Client acknowledges and agrees that (i) Sage has invested and continues to invest substantial resources in training Sage' employees to provide the Services to Client and other Clients of Sage, (ii) because of the difficulty of hiring and retaining talented technical employees, Sage would suffer substantial damages if Client were to hire any of Sage' employees or to solicit or induce any such employees to terminate employment with Sage, and (iii) Sage has a legitimate commercial interest in protecting its employment relationships with its employees.
(b) No solicitation; No Hire. Client and Sage each agrees that during the term of this Agreement and for a period of six (6) months thereafter, each such party shall not (other than with the prior written consent of the other party, which consent may be withheld in the sole discretion of the other party) (i) hire any of the employees of the other party (the "employer-party") who performed services for the other party hereunder or were involved in monitoring or supervising the work of the other party hereunder or (ii) solicit or induce any such employees to terminate employment with the employerparty or to commence employment with the other party or any person other than the employer-party..
(c) Liquidated Damages. Client acknowledges that it is difficult and impracticable to predict with certainty the amount of damages that Sage would suffer if Client breached its covenants under Section 6.3(b), above, and therefore agrees that in the event of any such breach, Client shall pay to Sage liquidated damages in an amount equal to One Hundred Thousand Dollars ($100,000) for each Sage employee that Client hires or solicits or induces in violation of Section 6.3(c), above.
7. Term and Termination
7.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated pursuant to Section 7.2, below.
7.2 Termination. This Agreement may be terminated:
(a) By Sage. By Sage upon delivery of written notice of termination if Client (i) fails to pay any fees or reimburse Sage for expenses pursuant to Section 1, above, within thirty (30) days after the due date therefor set forth in the invoice therefor, or (ii) breaches any other obligation imposed upon Client under this Agreement and fails to cure such breach within ten (10) days following the date on which Sage delivers to Client written notice of default, or (iii) upon delivery of thirty (30) days' advance written notice to Client.
(b) By Client. By Client at any time upon sixty (60) days' advance written notice to Sage, provided that Client agrees that if Client delivers written notice under this Section 7.2(b), then (i) during the initial 30 days of such 60-day period, Client shall permit Sage to rectify any service or performance problems that Client may have encountered during the term of this Agreement and (ii) if Sage rectifies such matters to Client's satisfaction, then Client shall consider withdrawing its notice of termination under this Section 7.2(b).
7.3 Effect of Termination. Upon any termination of this Agreement for any reason:
(a) Survival of Claims. Each party shall retain all claims arising under this Agreement with respect to periods prior to the effective date of termination of this Agreement.
(b) Refund of Prepaid Fees. If this Agreement has been terminated by Client pursuant to Section 7.2(b), above, then within thirty (30) days after the effective date of termination, Sage shall refund to Client any prepaid fees or expenses attributable to the period after the effective date of such termination.
(c) Survival of Obligations. The rights and obligations of each party under Sections 6, 7, and 8 of this Agreement shall survive the expiration or termination of this Agreement.
8. Miscellaneous.
8.1 Notices. All notices permitted or required by this Agreement shall be in writing, and shall be deemed to have been delivered and received
(a) when personally delivered, or (b) on the third (3rd) business day after the date on which deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, or (c) on the date on which transmitted by facsimile or other electronic means generating a receipt confirming a successful transmission, or (d) on the next business day after the date on which deposited with a regulated public carrier (e.g., Federal Express) designating overnight delivery service with a return receipt requested or equivalent thereof administered by such regulated public carrier, freight prepaid, and addressed in a sealed envelope to the party for whom intended at the address or facsimile number appearing on the signature page of this Agreement, or such other address or facsimile number, notice of which is given in a manner permitted by this Section 8.1.
8.2 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be ineffective, unenforceable, or illegal by any court having jurisdiction, such condition shall not affect the validity or enforceability of any of the remaining portions hereof, unless it deprives any party hereto of any material right or license held by such party under this Agreement. The parties shall negotiate in good faith to replace any such ineffective, unenforceable or illegal provisions as soon as is practicable, and the substituted provision shall, as closely as possible, have the same economic effect as the eliminated provision.
8.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
8.4 Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and subject to and construed according to the internal laws of the State of California.
8.5 Arbitration. All disputes, claims and controversies arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate set forth in this Section 8.5, shall be determined by binding arbitration in Santa Barbara, California, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the arbitrator's award may be entered in any court having jurisdiction. This Section 8.5 is not intended and shall not be construed to preclude either party from seeking from a court of competent jurisdiction (a) equitable or injunctive relief or (b) other provisional remedies in aid of arbitration. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. This agreement to arbitrate shall be specifically enforceable.
8.6 Warranty of Authority. Each individual signing this Agreement on behalf of a party (the "signing party") hereby warrants to the other party that such individual has full power and lawful authority to sign this Agreement in the name of the signing party and thereby to cause this Agreement to become the lawful and binding obligation of the signing party.
8.7 Entire Agreement. This Agreement
(a) represents the entire understanding of the parties hereto with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings, whether oral or written, regarding such subject matter, and (b) may not be amended or modified, except by a written instrument signed by the party sought to be charged by such modification or amendment.
8.8 Counterparts and Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument binding on all the parties hereto, notwithstanding that all of the parties are not signatories to the original or the same counterpart. A copy of this Agreement that is executed by a party and delivered by that party by facsimile or by email shall be binding on such signatory to the same extent as a copy hereof containing that signatory's original signature.
8.9 Attorneys' Fees. If any action or proceeding is commenced to construe or enforce the terms or conditions of this Agreement, or the application or validity thereof, then the party prevailing in such action shall be entitled to recover its reasonable attorneys' fees and other court costs, together with any costs and attorneys' fees incurred in enforcing any judgment entered therein.
8.10 Independent Contractor. Client is engaging Sage hereunder as an independent contractor. This Agreement is not intended and shall not be construed to create any other legal relationship between the parties or to impose any fiduciary duties upon Sage.
8.11 Force Majeure. Neither party shall be liable for any default or delay in performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by fire, flood, earthquake or other acts of God; labor disputes, strikes or lockouts; wars, rebellions or revolutions; riots or civil disorder; terrorist attacks; accidents or unavoidable casualties; interruptions in transportation or communications facilities or delays in transit or communication; supply shortages or the failure of any Person to perform any commitment to such party related to this Agreement; or any other cause (whether similar or dissimilar to those expressly enumerated in this Section 8.10) beyond such party's reasonable control.
