Confidentiality During the term of this Agreement, and thereafter in perpetuity, neither party shall without the prior written consent of the other, disclose to anyone any Confidential Information of the other. “Confidential Information” for the purposes of this Agreement shall include each party’s proprietary and confidential information such as, but not limited to, customer lists, business plans, marketing plans, financial information, designs, drawing, specifications, models, software, source codes, and object codes. Confidential Information shall not include any information that client makes publicly available or information which becomes publicly available through no act of BGP Group or Client or is rightfully received by either party from a third party.
Force Majeure: Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of BGP Group’s technical staff (collectively referred to herein as “Force Majeure”). Each party shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.
If the Client work is substantially changed due to a Force Majeure, BGP Group will evaluate the need for change to IT services to Client and related change of managed service fees. Recognizing there are ongoing expenses to BGP Group of maintaining backups, remote monitoring, other vendor support software/licensing and availability of technicians to service on going needs, BGP Group will review with Client the need for change of fees if any. Late fees will not be charged under an agreed scenario below:
BGP Group shall not be liable to Client or any of its affiliates for any damages, whether incidental, direct, indirect, special, consequential or punitive damages arising out of service or equipment provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, or loss to person or property, costs of substitute equipment or other costs even if BGP Group has been advised of the possibility of such damages. Regardless of the form of action, BGP Group’s cumulative liability shall be only for loss or damage directly attributable to negligence of a BGP Group employee or contractor, for the cost of restoring the network to its condition prior to the negligence, but not to exceed the total sum of the past 6 months invoices for the Client. If a collection action is initiated by either party or if BGP Group has to defend any action by Client, BGP Group is entitled to its reasonable attorney fees and expenses to be paid by Client.
Implied Warranties are expressly disclaimed by BGP Group. An BGP Group contractor is a technician or contractor who operates on behalf of BGP Group, is paid by BGP Group and has access to BGP Group’s service ticket management system for making time entries and charges for their work. BGP Group is not responsible for the acts of other technicians, contractors or consultants providing service to Client not under its control and direction. If Client purchases equipment from BGP Group it understands and agrees that it will look to the manufacturer for all remedies and warranties and agrees that BGP Group is not responsible for functioning of the equipment and has not made any express or implied warranties. BGP Group shall not be liable for any claim or demand against the Client by any third party on account of errors or omissions performed hereunder.
Remote access to personal computers and/or networks. If or when Client transitions to home or alternative networks, BGP Group will make best effort to make connections and serviceability. However, home or alternative networks may not have adequate internet connectivity and equipment to effectively work. BGP Group is not responsible for inadequacies in those home or alternative networks or to secure those connections. Home equipment will not be as secure and may not have BGP Group’s software and security features. BGP Group is not responsible for the security of the home or alternative networks. Work on a home or alternative network unless otherwise included is outside the scope of this Agreement and BGP Group may charge its then hourly rate for work on home or alternative networks. BGP Group will charge for additional software installed at home or alternative networks as needed.
In the event of a Force Majeure BGP Group is not required to have technicians work during periods or at places where their safety or health could be in jeopardy and in any event will not require technicians to go on site.
Client agrees to carry liability insurance and property insurance covering any damage to its network as well as to any clients of the Client adversely affected by Client’s network functioning or transmissions from its network.
BGP Group may apply changes or additional terms, conditions and provisions to this Agreement upon 30 days advance written notice to client containing the proposed addition or change. If the additions or changes are not objected to then they shall take effect at the end of the 30 days. Within the 30 days Client may submit changes or objections to the proposed changes or additional terms. If the parties do not agree on the change or addition then it shall not become part of the Agreement. All the terms, conditions and provisions of this Agreement will continue to apply during any renewal term. Both parties agree to negotiate in good faith rates to be mutually agreed under any renewed contractual service term to be effective at the end of the initial term.
Failure to pay: If payment is not received by the due date of the invoice BGP Group reserves the right to put a hold on rendering on-site and remote services until all overdue invoices have been paid, provided BGP Group gives a five (5) business day notice of late payment.
It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials provided by BGP Group. Client shall pay any such taxes unless a valid exemption certificate is furnished to BGP Group for the jurisdiction of use, except in cases when BGP Group procures or sources the incorrect equipment and / or software and / or support services any incorrect items or software shall be returned to BGP Group.
This Agreement is fully assignable by BGP Group. Immediately upon assignment the assignee’s name, address and contact information shall be provided to the other party. This Agreement shall be fully binding and enforceable as against all permitted assignees and successors in interest.
This Agreement and any amendments and its validity, construction and performance shall be governed by the laws of New South Wales. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in the county and state of New South Wales, and the parties agree and consent to such jurisdiction and venue.
This Agreement does not create any rights in any third parties.
Termination by Client: Client may terminate this Agreement with or without cause by providing 30 days notice, payment of all past and currently due amounts together with late fees and costs unless client has valid reason to withhold payment on incomplete tasks, work orders or faulty equipment and provided BGP Group was notified via email within 10 days of the original occurrence of any incomplete tasks, work orders and/or faulty equipment which it itemized with sufficient detail to identify the problem. That amount may be withheld until the incomplete tasks, work orders or equipment issues are resolved. BGP Group shall be given a reasonable opportunity to correct any problems. Any such election shall be made in writing by Notice of Termination and is to be accompanied by the Termination Fee and all other amounts due.
Backups in the event of default or early termination or in the event the parties do not renew at the end of the term of this Agreement: Client shall be responsible for transferring backups to a system administered by Client or others on its behalf and for paying any costs of transferring and/or setting up backups off of the system maintained by BGP Group. If Client does not provide for any transfer of backups, they shall be terminated within 30 days of the Notice of Termination or Notice of Default. Client assumes all responsibility for its backups and BGP Group has no responsibility to retain backups. In the event prior to the end of the 30 days, client places its own backups on site or obtains its own cloud backups then it shall notify BGP Group so it’s backups can be terminated.
In the event of termination by either party, Client is responsible for the full amount of all payments for services provided and products ordered.
If either party terminates the relationship of managed service provider and client or if Client defaults then the parties agree to work cooperatively to transfer the client’s data and network information as directed by the client to another service provider or to the client. The client will pay the cost of transfer which will include hourly charges of technicians to accomplish the transfer and any services maintained by BGP Group containing Client data. Client must designate a vendor to handle its email, backups and any other services provided by BGP Group. Client must establish an account for transfer of the backups and any other services within 30 days of notice of termination or default, or within 30 days of termination of this SLA. BGP Group has no responsibility for backups, email or other services beyond 30 days following termination or default under this Agreement.
In the event of termination of services for any reason by either party, upon written request by Client, BGP Group will provide up to 60 days support to allow Client to make a transition provided Client pays all amounts then due and pays the fee for the additional 60 days in advance.
