NEW ORLEANS TECHNOLOGY SERVICES LLC
PROFESSIONAL SERVICE and CONSULTING TERMS & CONDITIONS
The Professional Services Agreement (PSA), or Consulting Agreement is between New Orleans Technology Services LLC and the entity who executes a Consulting Package Agreement, or any other Agreement with New Orleans Technology Services LLC into which this Agreement is incorporated by reference (“Client”). New Orleans Technology Services LLC will reference this Terms and Conditions Page on invoices and/or communications, the Client hereby agrees to be by bound by and abide with the terms and conditions of this Terms and Conditions of this Agreement. New Orleans Technology Services LLC shall only provide Professional Technical Consulting Services for the devices listed in monthly invoices.
MONITORING AND CONSULTING
New Orleans Technology Services LLC monitors all systems and networked equipment that it manages under Consulting Agreement 24 hours per day, 365 days per year, barring cases of third-party hardware, software, or service failure and Force Majeure, or other service interruptions that prevent monitoring, however caused. In case of interruptions in monitoring, New Orleans Technology Services LLC shall make commercially reasonable efforts to restore monitoring.
START DATE / SERVICE PERIOD
The Start Date is the date New Orleans Technology Services LLC turns on its services covered hereunder. The Service Period and billing begin on the Start Date. At the end of the Service Period, the Agreement will automatically renew month to month, unless terminated in writing at least twenty (20) days before the expiration of the then-current term. If one or more equipment-related charges (such as a hardware lease) are paid in full during any given Service Period, the monthly fees for the next period will decrease by the amount of the current monthly fees attributable to the said charges. Any changes made to the Agreement by mutual consent during a Service Period shall be documented by executing a subsequent Agreement during that Service Period, but such changes to Services shall not affect the Service Period itself as set forth in the original Agreement unless such subsequent Agreements specifies a different Service Period. If New Orleans Technology Services LLC or Client fail to execute a subsequent Agreement after a change in Services has been mutually agreed upon in writing in another agreement executed by New Orleans Technology Services LLC and Client (such as a Statement of Work), such failure shall not in any way affect Client’s responsibility to pay the new and updated fees due and payable for the new Agreement to which Client has agreed by executing such other agreement.
START-UP FEES AND PAYMENT
Start-up fees and the first month’s service fees are due and payable with the signing of the 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, without demand or invoice. Specifically, New Orleans Technology Services LLC shall not be required to generate an invoice or make any demands for payment on or before the first of each month in order for Client to be obligated to pay the monthly service fees specified by the PSA by the first of each month, in advance for that month. New Orleans Technology Services LLC shall provide invoices for each Consulting Package payment due hereunder and at reasonable times and shall not unduly delay such invoicing. The fees and payments due hereunder are defined in the Agreement. Service is subject to interruption and disconnection by New Orleans Technology Services LLC for nonpayment of monthly fees or any other fees due and payable by Client, and New Orleans Technology Services LLC reserves the right to seek all other remedies at law.
TAXES AND OTHER CHARGES
Equipment purchases, software purchases, and repair services are not included in the monthly consulting fees. These services will be invoiced as a separate taxable line item.
All amounts due and payable hereunder may be exclusive of applicable charges, fees, levies, imposts, duties, tariffs or other assessments imposed by or payable to any federal, state, local or foreign tax or governmental authority, including without limitation sales, use, goods, services, value-added, transfer, customs, personal property, stamp duty, excise, withholding and other obligations of the same or similar nature (individually and collectively, “Taxes”) based or measured thereon. The client will be responsible for the payment of all such Taxes, excluding Taxes based on New Orleans Technology Services LLC’s income. Client will indemnify and hold New Orleans Technology Services LLC harmless from any current or future obligation, including due a change in legislation, to pay to any governmental entity any employer statutory Taxes, withholding Taxes, social security Taxes or any other Taxes in connection with New Orleans Technology Services LLC’s performance under this Agreement, and from any and all damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefrom.
RESPONSIBILITY OF PARTIES
New Orleans Technology Services LLC shall use commercially reasonable efforts to provide the Client with substantially uninterrupted services by means of New Orleans Technology Services LLC’s systems, personnel, and other resources.
ACCEPTABLE USE POLICY (“AUP”)
The Client shall use New Orleans Technology Services LLC’s services only in accordance with applicable law and for lawful purposes. The Client shall not use or permit others to use New Orleans Technology Services LLC’s services (including by transmitting, posting or storing content) in a manner that would violate any law or infringe any copyrights or trademarks. Once notified of any violation of this Acceptable Use Policy, the Client agrees to cooperate with New Orleans Technology Services LLC and work promptly to cease the noted activities. New Orleans Technology Services LLC reserves the right to interrupt or disconnect services for non-compliance with this AUP or in compliance with instructions from government authorities. The client shall be responsible for all authorized uses of services provided by New Orleans Technology Services LLC. A more extensive AUP may be provided as an addendum to this Agreement in connection with certain services.
NEW ORLEANS TECHNOLOGY SERVICES LLC EQUIPMENT
In certain circumstances, New Orleans Technology Services LLC may supply client premises equipment or cloud premises equipment that may consist of any third-party hardware and software not manufactured by New Orleans Technology Services LLC to the Client and retain ownership in such CPE. Unless otherwise specified through an SOW or other agreement, all CPE shall be purchased and owned by the Client, whether procured by New Orleans Technology Services LLC and passed through to Client or purchased directly by Client from third-party hardware and software vendors. If any CPE is owned by New Orleans Technology Services LLC, New Orleans Technology Services LLC shall have the right to remove all CPE that it has supplied. Client agrees to allow New Orleans Technology Services LLC personnel and subcontractors reasonable access to the Client’s premises and/or building (the “Client Site”) to install, configure, managing, maintaining, repairing, replacing and removing the CPE. If Client does not own the Client Site and access to portions of the Client Site other than the Client premises is needed (i.e. building phone room, data room, HVAC room, roof, etc.), Client shall obtain, with New Orleans Technology Services LLC’s cooperation, all appropriate permissions from the owner or landlord for such activities.
NEW ORLEANS TECHNOLOGY SERVICES LLC PROVIDES ALL SERVICES ON AN AS-IS BASIS. IN PROVIDING ITS SERVICES, NEW ORLEANS TECHNOLOGY SERVICES LLC, 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 NEW ORLEANS TECHNOLOGY SERVICES LLC’S SERVICES OR THIRD-PARTY SERVICES PROVIDED OR PASSED THROUGH BY NEW ORLEANS TECHNOLOGY SERVICES LLC OR BY ANY OTHER PARTY IN CONJUNCTION WITH NEW ORLEANS TECHNOLOGY SERVICES LLC’S SERVICES, BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), WHETHER IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY, EVEN IF EITHER CLIENT OR NEW ORLEANS TECHNOLOGY SERVICES LLC KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
Without limiting the foregoing, New Orleans Technology Services LLC 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 New Orleans Technology Services LLC, New Orleans Technology Services LLC 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 New Orleans Technology Services LLC, 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 New Orleans Technology Services LLC 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 New Orleans Technology Services LLC and any Client or third-party damages, claims, losses or expenses resulting therefrom.
Depending on the nature of the services being supplied hereunder, a separate Service Level Agreement or Commitment Scope may be provided. If such Service Level Agreement or Commitment Scope is provided, it shall be executed separately.
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 New Orleans Technology Services LLC, or in any way associated with New Orleans Technology Services LLC services or otherwise. Therefore, Client and New Orleans Technology Services LLC agree to certain further limitations of liability and damages.
To the extent not prohibited by applicable law, New Orleans Technology Services LLC’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 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 New Orleans Technology Services LLC 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 PSA, whether signed concurrently or not, and, (iii) any other agreement between Client and New Orleans Technology Services LLC that incorporates this Agreement; including but not limited to claims or damages involving loss of business, revenue, profits, use, data, goodwill, reputation, or other economic advantage, however caused, and regardless of the legal theory of liability, even if New Orleans Technology Services LLC and/or Client knew, or should have known of the possibility thereof. Client and New Orleans Technology Services LLC agree that the provisions of Section 9 (No Warranty) and this Section 11 (Limitation of Liability) of this Agreement shall constitute Client’s sole and exclusive remedy with respect to (i) New Orleans Technology Services LLC’s services and any claims or actions arising therefrom, and, (ii) any third party services passed through or provided by New Orleans Technology Services LLC or by any other party in conjunction with New Orleans Technology Services LLC’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 New Orleans Technology Services LLC, 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 or inability to use of New Orleans Technology Services LLC’s services, or use or inability to use by those authorized by Client of New Orleans Technology Services LLC’s services; (ii) Client’s handling, storage, transmission or possession of information, data, messages or other content or assets on New Orleans Technology Services LLC’s systems or network, on Client systems or network that are installed, managed or otherwise serviced by New Orleans Technology Services LLC, or on third party systems and networks that New Orleans Technology Services LLC uses to provide its services, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of
CONSULTING PACKAGE TERMS & CONDITIONS AGREEMENT
(A) 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 New Orleans Technology Services LLC’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 New Orleans Technology Services LLC’s Professional Services Agreement; or, (vi) Client’s failure to obtain permits, licenses, or consents that Client may be required to obtain to enable New Orleans Technology Services LLC to provide its products or services (e.g., landlord permissions, wiring permits, etc.) New Orleans Technology Services LLC agrees to indemnify and defend Client, its directors, officers, employees, agents and successors against third-party claims enforceable in the United States alleging that New Orleans Technology Services LLC’s services as provided infringe any third-party United States patent or copyright or contain misappropriated third-party trade secrets. New Orleans Technology Services LLC’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 New Orleans Technology Services LLC provides reasonable notice to Client of the infringement. For any third-party claim that New Orleans Technology Services LLC receives, or to minimize the potential for a claim, New Orleans Technology Services LLC 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 12 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.
This Agreement, any addendum to this Agreement, the New Orleans Technology Services LLC Professional Services Agreement (“PSA”) delineating the terms of the relationship, the PSA that describes the Services to be provided hereunder, and, in the event New Orleans Technology Services LLC provides Client with cloud services, a Cloud Services Availability Commitment Scope (“CSACS”), constitute the entire agreement of the parties and supersede all negotiations, proposals or purchase or other work orders, written or oral, provided that the Client shall also adhere to all policies and procedures established by New Orleans Technology Services LLC. This Agreement can be amended only by written notice to all parties. This Agreement may be assigned by either party without notice in the event of a merger or sale of substantially all of the assigning company’s assets or stock. The obligations under this Agreement shall be binding on and inure to the benefit of both Client and New Orleans Technology Services LLC, their successors, and permitted assigns. Any purchase order issued by the Client shall be solely for the internal convenience of the Client, and no term or condition contained in the purchase order shall in any way modify this Agreement or any of the rights or obligations of either party hereunder.
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.
Termination by Client is permitted without charge only in the case where all of the services provided hereunder as defined by a PSA executed by Client are unavailable or out of service for a period of seven consecutive days from ticket open, other than due to Force Majeure, provided Client works in good faith with New Orleans Technology Services LLC to correct the outage and does not contribute to the outage intentionally or not, by action, inaction, or omission. In such a case, service fees will be due up to the ticket-open date. All other terminations permitted under this Agreement by Client require payment of all fees due and payable under this Agreement for the entire then-current Service Period as a lump sum within five (5) business days of such Termination, and the return of any New Orleans Technology Services LLC equipment.
VENUE; GOVERNING LAW
Venue for any disputes regarding this Agreement shall lie exclusively in Louisiana, and the state and federal courts of Louisiana shall have exclusive jurisdiction over the parties and subject matter of this Agreement. Each party consents and submits to the in personam jurisdiction of any state or federal court located with Louisiana. Any party attempting to bring any suit concerning this Agreement in any state other than Louisiana shall be deemed to have consented to that suit’s dismissal for improper venue and lack of jurisdiction and shall be liable to the other party for the other party’s reasonable and necessary attorney’s fees and costs incurred in moving to dismiss the suit. The interpretation of this Agreement is governed by Louisiana law (except for any conflicts of law rules, if any, that might make the laws of another jurisdiction govern).
Notwithstanding Paragraph 16 of this Agreement, as a material part of this Agreement, Client and New Orleans Technology Services LLC agree that any and all disputes, claims, or controversies arising out of or relating to this Agreement or of New Orleans Technology Services LLC’s services shall be determined by confidential, final, and binding arbitration in Louisiana, in accordance with the then-existing rules for commercial arbitration of the American Arbitration Association. Disputes, claims, and controversies subject to final and binding arbitration under this Agreement include, without limitation, all those that otherwise could be tried in a court to a judge or jury in the absence of this Agreement. By agreeing to submit all disputes, claims, and controversies to binding arbitration, both Client and New Orleans Technology Services LLC expressly waive their rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal and shall agree to all discovery requests and submit to all depositions as if it is doing business in Louisiana. The scope of any arbitral award shall be expressly limited by the terms of this Agreement. Any award shall be final, binding and conclusive upon the parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, both Client and New Orleans Technology Services LLC agree that before undertaking the aforementioned arbitration, they shall submit all disputes, claims, or controversies to a mutually agreeable mediator in an attempt to informally resolve said disputes, claims or controversies without the need for arbitration. Both Client and New Orleans Technology Services LLC agree that before even engaging mediation, they will make every effort to resolve any disputes peacefully. Nothing in this Section shall be deemed to prohibit New Orleans Technology Services LLC from seeking injunctive relief or to restrict New Orleans Technology Services LLC from asserting or enforcing any collection action in court, other than as set forth in Section 16 and this Section 17 of this Agreement.
EXCLUSIONS FROM PROFESSIONAL CONSULTING SERVICES
The following is a list of costs, expenses, charges or services explicitly excluded from the Professional Services listed in any PSA executed by Client. The below is not meant to constitute a complete list, and any cost, expense, charge, or service that is not specifically listed and explicitly included in an executed PSA is excluded from Professional Service Agreement by definition:
- Any parts, equipment, or hardware costs, fees or charges of any kind
- Any software, licensing, software assurance, renewal, or upgrade fees of any kind
- Any taxes of any kind
- Any shipping, handling, courier, or postage charges of any kind
- Any 3rd party vendor, OEM, or other manufacturer support fees or incident fees of any kind
- Any premise wiring services (voice/data/video cabling) of any kind
- Training of any person in any context, unless otherwise specified
- Travel, travel time, gas or gas mileage, per diem or accommodations, when applicable, when visiting Client offices or any other third-party site on Client’s behalf
- Any non-IT materials needed to provide services or requested by
- Client, including but not limited to office supplies or media
- Any type of service, repair, reconfiguration, maintenance or management occasioned or made necessary by the alteration of systems, devices, software or other resources, with or without administrative access to such resources, by anyone other than authorized New Orleans Technology Services LLC personnel. Includes any change or service occasioned by acts or omissions by the Client’s employees, principals, consultants, subcontractors, third-party vendors, or any other third parties who may have or have had physical, logical or remote access to Client’s resources
- Maintenance of third-party applications, software, software packages or add-ons, whether acquired through New Orleans Technology Services LLC or any other source. The only exception is software made or modified by New Orleans Technology Services LLC to provide consulting services.
- Any software programming or scripting (creation or modification of software code) and program (software) maintenance
- Any work, project, service or support of any kind, whether one-time, periodic, or ongoing, that involves a new resource that was not present at the time a PSA is executed
- Any work that does not qualify as a service ticket with respect to restoring the normal functioning of the resources being managed as per an PSA, i.e. any work that does not involve proactive management, routine administration, or troubleshooting (whether client-prompted/requested or otherwise) malfunctioning or non-functioning systems or resources under management as per an PSA. Any such work is defined as a Project. Projects include but are not limited to re-configuring resources by client request, integrating with newly acquired/introduced hardware, software or networks, or with other formerly non-existent third-party resources, or otherwise making changes to managed resources, when such configuration, integration or changes are not warranted nor necessary (a) to manage such resources, or, (b) to keep such resources in good working order. Such
Projects are by definition not part of consulting services or the Professional Services Agreement since our Professional and Monitoring Services concern themselves with proactively monitoring and consulting to keep operational existing resources explicitly listed by the PSA.
The parties to this agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
The client agrees not to solicit directly or indirectly for hire the employees, contractors, or subcontractors of the other Party and further agrees not to hire employees or contractors of the Party. This restriction shall survive during the term of the Agreement and for a period of twenty-four (24) months after the expiration or termination of the Agreement. In the event the Customer violates this provision, the Customer shall immediately pay NOTS an amount equal to an employment placement fee of three hundred (300) times the last hourly rate billed to the CLIENT for said employee immediately due to New Orleans Technology Services LLC as liquidated damages and New Orleans Technology Services LLC shall have the option to terminate the Agreement without further notice or liability to the CLIENT. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs New Orleans Technology Services LLC would incur to identify, recruit, hire and train suitable replacements for such personnel.
Client shall not (1) reverse engineer any software provided under this Agreement in an effort to produce a competitive product and/or (2) directly or indirectly contact vendors, service providers, contractors, software companies, or similar third parties to obtain products and services which New Orleans Technology Services provides according to this Agreement.
New Orleans Technology Services LLC shall use “Best Effort” to provide consulting for all other technical items not specifically outlined in this Agreement. That means we will put our best effort into providing knowledge and advice for any technical issue, even if it is an issue not typically covered by our Professional Services Agreement. In some cases, additional consulting fees may apply for Best Effort consulting.
THIS IS THE ENTIRE AGREEMENT