Services: Spade Technology shall provide to Client remote or onsite support of their systems in accordance with SCHEDULE A. SupportWerks includes services necessary to maintain the functionality of existing technology and which are covered by the Spade Technology Agreement. Service requests will be performed remotely; if a support request cannot be resolved remotely, at Spade Technology’s option, a Spade Technology engineer will make a scheduled service call to the Client’s location. Spade Technology’s normal working hours for the purpose of this Agreement are 8:00 am to 5:00 pm Eastern Standard Time, Monday through Friday excluding Spade Technology Recognized Holidays. Spade Technology may also provide onsite technical equipment to Client for the support of their systems.
Thirty (30) Day Guarantee: If Client is not satisfied with Spade Technology, Inc. in any way within the first thirty (30) days of our service, submit your issue to us in writing and we will refund one hundred percent (100%) of the labor service fees you paid for those first thirty (30) days of service as well as terminate all services.
Term and Termination: This Agreement shall be in effect for a one (1) year term, unless otherwise stated in SCHEDULE A, and shall automatically renew for subsequent one (1) year terms commencing on the one (1) year anniversary of the Effective Date unless notification sent in writing by either party is received 30 days before end of term. Cancellation after the initial Thirty (30) Day Guarantee period will result in Client paying Spade Technology for the remaining balance of the Agreement. Spade Technology will provide transitional support for thirty (30) days. Spade Technology may terminate this agreement upon sixty (60) days written notice to the Client and will likewise provide transitional support for thirty (30) days. Upon cancellation all Spade Technology provided equipment must be returned. Failure to return Spade Technology’s equipment within thirty (30) calendar days will result in charges to cover the cost(s) associated with replacing the unreturned equipment. Client agrees to pay such charges whether the equipment is unreturned, lost, stolen or destroyed. Either party may terminate this agreement immediately if the other party becomes insolvent, or bankrupt, liquidated or dissolved, or ceases substantially all of its business. Neither party shall be liable for damages resulting from a termination of this agreement as provided for herein.
Fees: Fees will be calculated based upon the information provided in SCHEDULE A. Fees are billed monthly, in advance and commence on the Effective Date; if the Effective Date is other than 1st of the month, prorated fees for the initial month and following month will be billed in advance. Client’s provided credit card or ACH will be charged on the invoice due date. A finance charge of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) late payment fee will be assessed on any unpaid balance remaining after due date. Fees stated in this Agreement are subject to increase by three percent (3%) each year. Spade Technology reserves the right to refuse or suspend service under this Agreement in the event Client has failed to keep the account current. Spade Technology has a minimum monthly fee of $1,500 in order to maintain service.
Representation and Warranties: Each party represents and warrants to the other that (i) it has all necessary authority to enter into and perform its obligations under this agreement without the consent of any third party, and (ii) that it shall comply in all material respects with all laws applicable to the performance of the Services. THE PARTIES HERETO MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT.
Assignment: Spade Technology may assign this Agreement to an affiliate or third party without the prior consent of Client.
Confidential Information: Spade Technology will keep all Client information confidential. Spade Technology may share or make transfers of Client’s data (including confidential information) as is reasonably necessary and/or incidental to Spade Technology’s performance of the services provided under this Agreement. This section shall survive the termination of this Agreement.
Non-Solicitation: The Client hereby agrees not to solicit, recruit, hire or otherwise to retain the services of any Spade Technology, Inc., Inc. employee except through Spade Technology, Inc., Inc. for a period of one (1) year following the Agreement termination. Should the Client do so, as compensation for the cost to Spade Technology, Inc.’s investment in recruiting, developing, training of or loss of services of the said employee, the Client agrees to pay to Spade Technology a sum equal to one hundred percent (100%) of the said employees previous twelve (12) month Spade Technology compensation within five (5) days of the said employee’s date of employment by Client.
Maintenance: Spade Technology will perform regularly scheduled maintenance tasks to keep Client’s server(s), workstation(s), & other hardware running efficiently and to minimize exposure against security threats. Many of these tasks require client’s hardware to be restarted. Spade Technology reserves the right to conduct after-hours/weekend maintenance and restarts. Spade Technology requires that servers and workstations remain powered on but logged off after business hours.
Software Licensing: Spade Technology will not support unlicensed software. In the event that the Client has unlicensed software, the Client is responsible for achieving 100% license compliance.
Data Loss: While Spade Technology will make commercially reasonable efforts to preserve Client’s data, consistent with other services of this nature, Client alone is responsible for backing up Client’s own data. Client hereby releases Spade Technology from liability resulting from economic or non-economic loss resulting from lost, missing or corrupted data that might occur as a result of any service or repair work performed by Spade Technology or from any failed hard drives or other hardware malfunctions or failures.
Network Intrusion: While Spade Technology will make commercially reasonable efforts to secure wired and/or wireless network connections, consistent with other services of this nature, the presence of hackers, viruses, malware, adware, spyware, spam and the Client’s own email and web surfing may compromise the integrity of the Client’s wired and/or wireless network. Client hereby releases Spade Technology from liability for economic or non-economic loss resulting from any network intrusion or the compromise of the Client’s wired and/or wireless network.
Client Responsibilities and Minimum Standards:
Loaned Equipment: The Client agrees that the DataSAFE solution including the NAS unit, all software and hardware utilized by Spade Technology, in the execution of this service shall remain the property of Spade Technology, and must be returned if requested. Client further agrees to cease the use of any technology that remains the property of Spade Technology upon termination of this agreement. If the NAS unit is stolen, damaged or destroyed, the client must pay current market prices at the time of the loss for a replacement unit.
Disaster Service: In the event of a disaster, there will be additional fees for “Disaster Recovery Service” plus all applicable hardware, freight and shipment costs to deliver a new NAS that will contain the most current data loaded at the Data Center. Fees for the “Off-Site Virtualization Service” are $750.00 per week for access to virtualized machines.
Title of Software, Documentation and Services: No ownership or title of the Software, Documentation or Services used to deliver the Back-up Service is conveyed to the Client under the terms of this Agreement.
Warranties: Work will be performed to the best of Spade Technology’s ability and in accordance with reasonable and customary practices prevailing at the time. Client acknowledges that the software and hardware used to provide the service may contain bugs, errors or other problems. The DataSAFE unit cannot be modified in any way by anyone but Spade Technology. This includes adding software applications to the NAS itself, adding memory and/or hard drives, etc. The software and third-party products which are supplied with the software are provided “as is” without any warranties of any kind. Spade Technology makes no warranties, express or implied, including but not limited to warranties of or relating to merchantability, fitness for a particular purpose, or non-infringement of third parties’ rights.
Liability: Neither Spade Technology, Spade Technology’s employees nor agents will be liable in contract, tort or negligence for any consequential losses, indirect losses, liability, injury, damages or any other claim for consequential compensation whatsoever, including loss of profit, costs, and expenses from or in connection with any contract or agreement or breach thereof. Spade Technology will not be liable for any consequential loss or damages due to unauthorized ‘hacking’ of the network infrastructure.
Exclusions: Spade Technology’s SupportWerks service does not include the following items and Spade Technology reserves the right to deny service or bill the Client at our current rates for service. This is not an exhaustive list.
DataSAFE Backup and Disaster Recovery Solution: This coverage will provide server backup and offsite cloud storage, backup monitoring and issue mitigation, backup to on-site storage (Spade Technology provided NAS), unlimited file restores, encrypted offsite synchronization, cloud-based recovery environment, quarterly recovery testing and access to a disaster recovery consultant.
Fees may increase if additional storage or licenses are required. Adjustments for additional licenses or additional offsite storage will be applied on the next billing cycle.
Spade Technology Recognized Holidays:
Notice: All notices required to be sent shall be in writing and shall be deemed to have been given when received by email, if provided during normal business hours, otherwise, it shall be deemed to have been given on the next business day, given by personal delivery, mailed by registered mail, return receipt requested to the address set forth below or to any other address specified by a party in writing for notification. To expedite order processing, the Client agrees that Spade Technology may treat documents faxed by the Client to Spade Technology as original documents; nevertheless, either party may require the other to exchange original signed documents. All notices referred to in this Agreement shall be sent to:
Spade Technology, Inc.
800 South Main Street, Suite 103
Mansfield, MA 02048
Venue: This agreement is made in Bristol County, Massachusetts, and venue shall be proper only in the County of Bristol County, Massachusetts, in any action brought relating to this Agreement.
Dispute Resolution: In the event of any dispute under or relating to this Agreement, the Client agrees to participate in non-binding mediation before a mutually agreed upon mediator in Bristol County, Massachusetts. Other than any emergency injunctive relief that is otherwise available under this Agreement, the parties agree not to initiate a court action or arbitration against the other until after completion of such mediation has occurred. So long as the prevailing party in any such action participated in mediation under this paragraph (or was excused from same due to the other party’s refusal to mediate), then such prevailing party shall be entitled to costs and reasonable attorneys’ fees.
Force Majeure: Spade Technology shall be excused from performing its obligations under this Agreement if its performance is delayed or prevented by any event beyond its reasonable control, including, but not limited to, acts of God, fire, explosion, weather, disease, war, insurrection, civil strife, riots, government action, equipment failure or power failure.
Indemnification: Client shall protect, indemnify, hold harmless and defend Spade Technology, Inc., its officers, agents and employees against any and all claims, demands, damages, costs, expenses, attorney’s fees, expert costs and fees, or liability costs arising out of the design, sale, lease, installation, repair, service, dispatch, maintenance, monitoring, recording of communications, operation or no operation of the equipment and compliance with all laws. Except as otherwise provided herein, Client waives all claims and recourse against Spade Technology, including without limitation the right to contribution for loss or damage to persons or property arising from or relating to this Agreement, except as to gross negligence or willful misconduct of Spade Technology, its officers, agents or employees.
Complete Agreement: The SupportWerks Agreement, including SCHEDULE A and these SupportWerks Terms and Conditions shall constitute the entire Agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements with respect to same.