EFFECTIVE DATE: May 1, 2020
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into by and between CloudSmartIT, Inc., a corporation (“CloudSmartIT”), located at 5214 Maryland Way, Suite 200, Brentwood, TN 37027 and the Client identified in the applicable Order (as defined below). This Agreement applies to all sales orders (each an “Order”) entered into by the parties regarding work to be provided by CloudSmartIT to Client. Each Order shall be included as an exhibit to this Agreement. Work performed by CloudSmartIT on behalf of Client in any such Order will be identified as “Services”.
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS UNDER CLOUDSMARTIT PROVIDES SERVICES TO CLIENT UNDER AN ORDER. BY EXECUTING AN ORDER, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT BEFORE EXECUTING AN ORDER.
- Orders. From time to time, Client and CloudSmartIT shall enter into Orders for Services. Each Order issued under this Agreement shall include the Services to be provided to Client, the location of the Services to be performed, the performance schedule for such Services, the compensation to be paid to CloudSmartIT, a payment schedule for such Services, the term of the engagement (if there is a term), and any other specifications deemed relevant by Client and CloudSmartIT. No Order shall be binding upon the parties unless executed by both parties. The parties agree and acknowledge that neither party shall have any obligation under an unaccepted Order and that CloudSmartIT shall not be obligated to provide any services not listed in an Order. In the event that the terms of an Order and this Agreement conflict, the terms of the Order shall apply.
- Modifications and Additional Services. In the event that Client requests that CloudSmartIT provide additional services not described in the Order (collectively “Additional Services”) such Additional Services shall be agreed to in an Addendum (“Addendum”) which shall include the Additional Services to be performed and the additional compensation for such Additional Services. CloudSmartIT shall not be obligated to perform any Additional Services unless both parties have executed an Addendum covering such Additional Services.
- Fees and Invoices. Except as otherwise specified in the Order, all one-time fees shall be due prior to the commencement of Services, all recurring fees, including equipment rental fees, due under an Order shall be billed on the fifteenth (15th) day of the month prior to service, all on-site services is billed at the end at the end of each month and any job/ticket/project items will be billed when complete. Client recognizes that the time is committed by CloudSmartIT and fees are due regardless of time used. In the event that Client fails to pay any fees within fifteen (15) days of the invoice due date, such outstanding amounts shall be subject to a finance charge equal to the maximum rate of interest allowed by law on the past due amounts.
- Term and Termination.
a. Term. The Term of this Agreement shall be for the entire period of time that CloudSmartIT is providing Services to Client under an Order (“Term”). For any ongoing service Orders the Term shall be for a period of three (3) years unless a different Term is stated in the Order, and upon the completion of the initial term, the term shall automatically renew for subsequent renewal terms equal to the initial term unless terminated by a party by thirty (30) days’ written notice prior to renewal.
b. Termination after Breach. Either party may terminate any Order or the Agreement if the other party materially breaches a term of the Agreement and fails to cure such breach (if capable of being cured) within (i) fifteen (15) days after receiving written notice of the breach for monetary breaches, or (ii) thirty (30) days after receiving written notice of the breach for non-monetary breaches, provided, however, in the case of a non-monetary breach that cannot with due diligence be cured within such thirty (30)-day period, if the breaching party proceeds as promptly as may be reasonably possible and with all due diligence to cure the breach, the period of time in which the breaching party may cure shall be extended as necessary to cure such breach, but in no event shall such time period extend beyond a period of thirty (30) days after the breaching party’s receipt of written notice of the breach without the written agreement of both parties.
c. Automatic Termination. The Agreement shall all terminate automatically, without the giving of notice, and all fees for the Term shall become immediately payable in the event that Client: (i) ceases business operations; (ii) becomes insolvent; (iii) files a voluntary petition in bankruptcy (excluding reorganization); (iv) is adjudicated as bankrupt pursuant to an involuntary petition; or (v) suffers appointment of a temporary or permanent receiver, trustee, or custodian for all or a substantial part of its assets.
d. Suspension of Services. In addition to the termination rights above, CloudSmartIT may suspend performance of some or all of the unperformed Services in the event Client fails to pay any undisputed amount within thirty (30) days after the date payment is due pursuant to the Order or delivered invoice, at the option of CloudSmartIT. Fees shall continue to accrue and are fully payable during this suspension.
e. Effect of Termination. If the Agreement is terminated for any reason, Client shall unconditionally and immediately pay CloudSmartIT for all work completed and invoiced up until the date of termination (“Termination Date”), it being understood that the parties shall negotiate in good faith to determine the percentage of the Services completed as of the Termination Date, and the corresponding amount due from Client to CloudSmartIT (e.g., if CloudSmartIT provided Services for which Client has not yet paid), as applicable. If this Agreement is terminated as a result of Client’s breach or if Client attempts terminate early without cause, then if an Order of work provides for a guaranteed term of engagement (for example, a one (1) year period), Client agrees to pay a termination fee equal fifty percent (50%) of the balance of fees for such term which shall be immediately payable in full.
5. Managed IT Services.
a. Applicable to Managed IT Services. This Section applies to any Managed IT Services to be provided by CloudSmartIT to a Client under an Order, and in the event that an Order references Managed IT Services, the terms of this Section shall apply to such Managed IT Services. CloudSmartIT shall provide Client with the Managed IT Services as further set forth in the applicable Order subject to the terms of this Agreement.
b. Monitoring Services. CloudSmartIT will monitor workstations as set forth in the applicable Order and perform specific PC administration tasks to ensure optimum performance. Tasks and services provided for PC management and monitoring are as follows:
i. Desktop Policy Enforcement (as needed);
ii. Application Deployment (as needed);
iii. 3rd Party Application Updates (as needed);
iv. Software License Management (ongoing);
v. Security Administration (ongoing);
vi. Virus and Spyware Protection Management (ongoing);
vii. Security Patch Management (ongoing);
viii. Daily System Performance Audits;
ix. Enhanced Performance Disc Cleanup (ongoing);
x. Manage Warranty Repairs (as needed);
xi. Firewall Management (as needed); and
xii. Backup Software Management (ongoing).
c. Support Services. CloudSmartIT will provide Client with the following support services:
i. Unlimited remote desktop support which is available M-F, 8:00am – 5:00pm CST;
ii. Client Access Portal for service requests and ticket tracking at: https://cloudsmartit.itclientportal.com/;
iii. Monthly executive summary reports; and
iv. Limited onsite support and the applicable Order shall provide for a specific number of onsite support hours for onsite support services which shall apply to the servers, workstations, mobile devices, and network infrastructure covered under the Order. If the total hours exceed the onsite hours set forth in the Order, CloudSmartIT will charge Client the hourly rate set forth in the Order for any additional hours.
d. Offsite Backup Services Included. CloudSmartIT will provide Client with the following offsite backup services:
i. Daily backup monitoring and support; and
ii. The applicable Order shall provide for a specific number of GBs of offsite backup services. Offsite backup services shall only be available for those servers, workstations, and network infrastructure covered under the Order. CloudSmartIT shall not be obligated to provide offsite backup services exceeding the number of GBs listed in the Order.
e. Setup and Installation. CloudSmartIT will provide Client with the following setup and installation services:
i. CloudSmartIT will establish a remote connection to Client’s servers and network devices (Client is responsible for all costs related to acquisition and installation of telecommunications to achieve this connection. Business class high speed Internet access and static IP address is recommended. Client further agrees and acknowledges that CloudSmartIT is not responsible for or liable for any telecommunication data overages);
ii. If necessary, CloudSmartIT will configure Client’s existing firewall to allow connectivity for remote access;
iii. CloudSmartIT will install the appropriate remote-control software and/or configure management protocols on all devices covered under this Agreement;
iv. CloudSmartIT will install and configure a monitoring agent on an existing server(s) in Client’s network; and
v. If necessary, CloudSmartIT will make provisions for establishing this service through the Client’s firewall.
f. Service Level Agreement. CloudSmartIT agrees to the following service level agreement for the Managed IT Services:
i. CloudSmartIT agrees that it shall use its best efforts to minimize any disruption, inaccessibility and/or inoperability of the Services in connection with Unscheduled CloudSmart IT Downtime that is not the result of Downtime from Client Causes, whether scheduled or not. “Downtime from Client Causes” includes, but is not limited to: (i) network or infrastructure issues including connectivity problems arising from hardware and/or software configuration problems experienced by the Client on their individual hardware and/or software, (ii) arise from application failures that are the result of errors or bugs in the applications; (iii) arise from Application errors resulting from incorrect or defective Application installation by Client or its agents (other than CloudSmartIT; (iv) relate to Client-contracted internet service or client LAN environments; (v) relate, in any way, to operator error, fault, or negligence on the part of Client or their authorized users; third-party actions (other than CloudSmartIT), damage resulting from the dismantling of Client equipment and/or software by the Client or third-parties (other than CloudSmartIT) or other causes beyond normal usage of the services.
ii. For this Section, “Unscheduled CloudSmart IT Downtime” shall mean downtime that is not Scheduled CloudSmartIT Downtime, but occurs as a result of equipment malfunctions or causes beyond the control of CloudSmartIT that do not constitute Downtime from Client Causes (example: performance interruption relating to CloudSmartIT Internet connectivity which may be provided to CloudSmartIT by other vendors) or which are not reasonably foreseeable by CloudSmartIT, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures; provided, however, that Unscheduled CloudSmartIT Downtime shall not include downtime due to force majeure, including, but not limited to, acts of war, terrorist attacks, natural disasters, acts of God or other events beyond the control of CloudSmartIT or Client that affect substantially all Internet users in an affected area.
iii. For this Section, “Scheduled CloudSmartIT Downtime” shall mean downtime for periodic maintenance procedures or repairs which CloudSmartIT may undertake from time to time during non-business hours CloudSmartIT shall provide advance notice to Client in the event of any such Scheduled CloudSmartIT Downtime.
g. Client Responsibilities. Client shall have the following responsibilities:
i. Client must maintain a dedicated connection to their Internet Service Provider (A permanent public static IP address is suggested at customer cost. Appropriate telecommunication lines include T1, Fiber, DSL, or Cable. Client is responsible for keeping current on all Internet Service Provider fees.);
ii. Client must provide CloudSmartIT with a designated primary and secondary contact, as listed in the Order, which will be responsible for all communication between CloudSmartIT and Client for any services outlined in this Section;
iii. Client must provide CloudSmartIT with the contact and IP scheme information for the current ISP and other hardware/software vendors if applicable;
iv. Client must provide CloudSmartIT with all appropriate usernames and passwords required to access network resources (i.e. Administrator, firewall, router, printer, and switch usernames and passwords);
v. It is the responsibility of the client to ensure that prescribed backup operations performed by the Client are adequate. CloudSmartIT will not be responsible for client’s failure to do so, nor for the cost of reconstructing data stored on disk files, tapes, cloud provider, etc., lost during the performance of service performed hereunder; and
vi. CloudSmartIT shall provide Client with an encryption key which enables Client to recover backup data stored by CloudSmartIT (“Encryption Key”) (Client agrees and understands that Client will only be able to access data stored by CloudSmartIT with the use of the Encryption Key, and Client agrees and understands that Client is solely responsible for the safekeeping of the Encryption Key. Client further agrees that CloudSmartIT shall not be liable to Client in anyway if Client loses or damages the Encryption Key).
h. Monitored Managed and Monitored. Servers, workstations and network devices managed and/or monitored under this Section are listed in the Order. Servers, workstations and network devices not listed in the Order are specifically excluded under this Section.
i. Equipment Provided. CloudSmartIT shall only provide Client with the equipment listed in applicable Order. CloudSmartIT is not obligated to provide Client with equipment not listed in the Order.
j. Vendor Management. CloudSmartIT will assist the Client in dealing with admin issues related to communications vendors and CloudSmartITs such as ISP’s, telecom CloudSmartITs, etc., that impact the Client’s overall network operations. Any service needed due to vendors’ needs or problems are billable at the discounted rates.
k. Disaster Recover Services. Disaster recovery services are not included in Managed IT Services. However, disaster recovery services are available at an additional cost if specifically designated in the Order. Client agrees and acknowledges that CloudSmartIT has no obligation to provide Client with disaster recovery services unless otherwise stated in the Order. Client’s primary or secondary contact must initiate the disaster recovery service by declaring a disaster through verbal communication with a CloudSmartIT representative (no other employee of Client may initiate a disaster recovery). All CloudSmartIT resources will be engaged to assist in recovery upon declaration of disaster (additional charges may occur).
6. Smart Workspace Services.
a. Applicable to Cloud Workspace Services. This Section applies to any Cloud Workspace Services to be provided by CloudSmartIT to a Client under an Order, and in the event that an Order references Cloud Workspace Services, the terms of this Section shall apply to such Cloud Workspace Services. CloudSmartIT shall provide Client with the Cloud Workspace Services as further set forth in the applicable Order subject to the terms of this Agreement.
b. Minimum Requirements. In order to use CloudSmartIT’s Cloud Workspace Services, Client is required to meet the following minimum requirements:
i. Adequate infrastructure (wiring, internet, firewall, etc…);
ii. CloudSmartIT business class firewall/router (i.e. Sophos, Sonicwall);
iii. Static IP address for VPN connection to the Cloud for printing and scanning;
iv. Managed gigabit switches;
v. 150K available data bandwidth per CloudSmartIT Cloud Workspace user;
vi. Windows 10 Pro Operating system or newer; and
vii. All minimum requirements should be met before the “Go Live” date set forth in the Order (Any labor and/or hardware/software additions will be subject to the conditions of this Section).
c. Set-Up Services. CloudSmartIT shall setup the Client’s Cloud Workspace environment with Client’s software applications (“Client Applications”), any necessary installation and configuration media for the Client Applications (“Client Owned Media”), as well as all available documentation for the installation, configuration and support of the client applications (“Client Documentation”) listed in the Order. All work performed shall be in accordance with Client’s specification for the number of Client Seats as set forth in the Order. CloudSmartIT may provide technical support services beyond the scope of its normal support services, said services if any, will be specified under special provisions.
d. CloudSmartIT System. The Set-Up Services will result in CloudSmartIT being able to allow Client non-exclusive electronic access to CloudSmartIT’s digital information processing, transmission and storage system (“Cloud Workspace”) located at the computer facilities operated by CloudSmartIT or one of its partners. CloudSmartIT shall authorize connection to its Cloud Workspace via a unique user name, password and/or other access credentials that CloudSmartIT grants to Client, for Client access to the Cloud Workspace from a Client computer or other network device (each, a “Client Seat”). Client must designate Authorized Users (employees, agents or other persons) permitted to use Client’s account as designated by Client from time to time in writing to CloudSmartIT. CloudSmartIT will initially host the number of Client Seats and storage as set forth in the Order. CloudSmartIT will only provide Hosting Services to Client and its Authorized Users under the terms of the Order. CloudSmartIT may provide technical support services beyond technical support for CloudSmartIT Materials and such other additional services as specified in the “Special Provisions”. Client acknowledges and agrees that: (i) it has given CloudSmartIT its Client Applications, Client Specifications as set forth in the Order, and it has been advised of the period of time for Services to be established as defined in the Order; and (ii) as a result thereof, Client agrees that it has evaluated the Services offered by CloudSmartIT, and that the Services meet its business specifications and, upon Client’s execution of Orer, CloudSmartIT may commence the set-up process and any Services in accordance with the terms of this Agreement.
e. Delivery of Materials. At the time specified in the Order, Client will deliver to CloudSmartIT the Client Owned Media and Client Documentation required in order for CloudSmartIT to install and configure the Client Applications. CloudSmartIT will supply to Client any user instructions or installation media required to access the Cloud Workspace System.
f. Updates and Upgrades. At the time specified in the Order, Client will deliver to CloudSmartIT all upgrade patches or service releases for its Client Applications. Any support or maintenance fees Client pays to third party software vendors will remain between the Client and the Client’s vendor.
g. Proof of Licenses. At the time specified in the Order, Client must supply proof of all required licenses for the Client Applications, including, but not limited to, all necessary Client access licenses and serial numbers needed to support the Client Applications and copies of the Client’s license certificates and agreements for the same, including any licensing codes and/or unlocking codes. Client acknowledges that it will remain in compliance with all software licenses for the Client Applications managed by CloudSmartIT. Client assumes responsibility for any and all changes to its local systems for the purposes of maintaining its Client Applications license compliance specifically including but not limited to, costs for removing copies of Client software Applications which must be removed from Client owned systems in order to maintain compliance with Client’s software license agreements.
h. Bandwidth. At the time specified in the Order, Client agrees that it has or will acquire the necessary internet bandwidth to access and operate CloudSmartIT’s Cloud Services. CloudSmartIT recommends a minimum 150KB per end user of internet bandwidth.
i. Representatives. On the Order, each Party shall appoint a designated representative and liaison to serve as the primary contact person between the Parties (each, a “Representative”). The Client Representative shall deliver to CloudSmartIT the Client Applications, answer any questions that arise concerning the Client Applications, the Client Owned Media and the Client Documentation, provide feedback to CloudSmartIT’s Representative during the Set-Up Period, serve as the final authority to approve the Set-Up and otherwise serve as the contact person for the CloudSmartIT Representative for any other issues that may arise. Either party may change its Representative by notifying the other party of the change in writing.
j. Cooperation. The Set-Up can be completed by the estimated date of completion set forth in the Order (“Estimated Completion Date of the Set-Up Period”) if the Client delivers to CloudSmartIT its Client Applications required pursuant to the Order and responds to CloudSmartIT’s requests in a timely manner. On the Effective Date of the Agreement, the Representatives for the parties will schedule a date for an initial meeting or telephone conference to be held between the Parties, which shall be no later than seven (7) business days after that date. During the initial meeting or telephone conference, the Representatives will discuss the timetables for the completion of each phase of the Set-Up Period as developed by CloudSmartIT so that the Set-Up can be completed by the Estimated Completion Date of the Set-Up Period. Subject to the conditions set forth herein, each party will cooperate in good faith, and use its commercially reasonable efforts, to complete each phase of the Set-Up Period within the established timetables. Each time CloudSmartIT makes a request of Client’s Representative, CloudSmartIT will notify Client’s Representative of the date by which the request must be fulfilled in order for the Set-Up Period to be completed by the Estimated Completion Date of the Set-Up Period.
k. Delays. Client acknowledges that any delays in, (i) the transmission of the Client Applications, (ii) the deliveries that are required of Client pursuant to the Order or (iii) the Client’s responses to CloudSmartIT’s requests for information or approvals, will cause the Set-Up Period not to be completed by the Estimated Completion Date of the Set-Up Period and cause additional development time added to the Set-Up Period. If additional development time is needed to the Set-Up Period as a result of any delay caused by Client pursuant to subsections (i), (ii) or (iii) above, the Hosting Services shall continue to commence upon the Effective Date and Client shall be responsible for paying to CloudSmartIT its standard hourly rates for the additional development time or work that CloudSmartIT performs for the Client.
l. CloudSmartIT Materials. CloudSmartIT will own the software to allow remote access to the Client Desktop and any installation media necessary for the Client and its Authorized Users to access the Hosting Services (“CloudSmartIT Materials”), Anti-Virus and Anti-Malware software, CloudSmartIT WEB Filtering software and CloudSmartIT SPAM software. In consideration of Client’s performance of its obligations to CloudSmartIT expressly set forth in the Order, CloudSmartIT grants to Client, and Client accepts from CloudSmartIT, a limited non-transferable, royalty-free, non-exclusive right, for the Term of the Order, to use the CloudSmartIT Materials in connection with Client’s access to the Cloud Workspace solely for Client’s internal business purposes. This limited right of use is for the sole purpose of enabling Client to use and enjoy the benefit of the Services provided by CloudSmartIT, in the manner permitted by this Section. Client agrees not to, and not to engage others to, copy, modify, distribute, sell, or lease any part of the Services or included software. Client further agrees not to reverse engineer or attempt to extract the source code from the software without CloudSmartIT’s written permission. Client agrees that when a Service requires or includes downloadable software, the software may updated automatically on Client’s device once a new version or feature is available and Client hereby authorizes said updates without the need for further notice or authorization.
m. Client Materials. All other software applications (excluding Application Rentals), software licenses, workstation operating system licenses and documents other than the CloudSmartIT Materials, including, without limitation, the Client Applications, the Client Owned Media and the Client Documentation, will be owned by the Client (“Client Materials”). In consideration of CloudSmartIT’s performance of all obligations of this Section, for the Term set forth in the Order, Client grants to CloudSmartIT, and CloudSmartIT accepts from Client, a non-exclusive, worldwide and royalty free right to copy, display, use and transmit on and via the Internet the Client Materials, solely for the benefit of Client and in accordance with CloudSmartIT’s performance or enforcement of this Section.
n. Service Level Agreement. CloudSmartIT agrees to the following service level agreement for the Cloud Workspace Services:
i. CloudSmartIT agrees that it shall use its best efforts to minimize any disruption, inaccessibility and/or inoperability of the Services in connection with Unscheduled CloudSmartIT Downtime that is not the result of Downtime from Client Causes, whether scheduled or not. “Downtime from Client Causes” includes, but is not limited to: (i) network or infrastructure issues including connectivity problems arising from hardware and/or software configuration problems experienced by the Client on their individual hardware and/or software, (ii) arise from Application failures that are the result of errors or bugs in the Applications; (iii) arise from Application errors resulting from incorrect or defective Application installation by Client or its agents (other than CloudSmartIT; (iv) relate to Client-contracted internet service or client LAN environments; v) relate, in any way, to operator error, fault, or negligence on the part of Client or their Authorized Users; third-party actions (other than CloudSmartIT), damage resulting from the dismantling of Client equipment and/or software by the Client or third-parties (other than CloudSmartIT) or other causes beyond normal usage of the Services.
ii. For this Section, “Unscheduled CloudSmartIT Downtime” shall mean downtime that is not Scheduled CloudSmartIT Downtime, but occurs as a result of equipment malfunctions or causes beyond the control of CloudSmartIT that do not constitute Downtime from Client Causes (example: performance interruption relating to CloudSmartIT Internet connectivity which may be provided to CloudSmartIT by other vendors) or which are not reasonably foreseeable by CloudSmartIT, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures; provided, however, that Unscheduled CloudSmartIT Downtime shall not include downtime due to force majeure, including, but not limited to, acts of war, terrorist attacks, natural disasters, acts of God or other events beyond the control of CloudSmartIT or Client that affect substantially all Internet users in an affected area.
iii. For this Section, “Scheduled CloudSmartIT Downtime” shall mean downtime for periodic maintenance procedures or repairs which CloudSmartIT may undertake from time to time during non-business hours CloudSmartIT shall provide advance notice to Client in the event of any such Scheduled CloudSmartIT Downtime.
o. Remote LIVE Help Desk Support. CloudSmartIT shall provide remote support as needed during normal business hours, defined as the following: 8:00 AM thru 5:00 PM CST, Monday- Friday (State and Federal holidays) for covered equipment and issues under an Order as follows:
i. After-hours and weekend support shall be provided to the Client 7 days a week for emergency incidents only. An Emergency is defined as an incident which is detrimental to the continued operations of the Client’s business, major revenue impact, i.e. – a server and/or network is down.
ii. Where a non-emergency situation is applicable, discounted contract labor rates will be charged for work performed before or after normal business hours.
iii. The following software shall be supported in the CloudSmartIT Cloud Workspace with help desk services (as referenced in the Order):
(1) Microsoft Operating Systems;
(2) Internet Explorer and Goggle Chrome;
(3) Microsoft Office 365; and
(4) Adobe Acrobat Reader.
p. On-Site Hardware Support. CloudSmartIT will repair or replace hardware that is still under warranty and/or no warranty; discounted labor rates will apply. The Client will be responsible for maintaining its warranties on equipment, and paying for new replacement parts or systems, as needed.
q. Service Legal Agreement. A service ticket number will be issued of all service requests placed to CloudSmartIT for the purpose of tracking. CloudSmartIT shall have an engineer begin work on an assigned service ticket following service ticket submission. The following different response levels shall be used:
i. Emergency | Critical – within (1) hours – Examples: network down, application down, server down, e-mail down company wide;
ii. Urgent | High – within (4) hours – Examples: power user system, power user e-mail down;
iii. Normal | Medium – (8) hours – Examples: User printer issues, program will not open, e-mail issues;
iv. Information | Low – 48 hours – Examples – Minor functionality in Microsoft Office – font issues, Signature not working;
v. New Application Install or Application Upgrade – 5-10 business days; and
vi. New User Setup – 1-3 business days
r. Additional Charges. Client shall be responsible for additional charges as set forth in the Order which may include travel and additional labor for services outside the scope of the Order.
s. Local Networking. Under all circumstances, Client shall be responsible for all maintenance and repair of its own local network systems except for services provided by CloudSmartIT in this Section and the Order, including but not limited to, wiring, switches and hubs, local workstations, wireless networking access points and gateways, communication lines, routers.
t. Backups; Redundancy and Disaster Recovery Services. CloudSmartIT shall maintain data backups of all Client data related to the Client File Server and will maintain system configuration and software configuration in order to maintain system availability of all Client Applications within the limitations as described in section 5. CloudSmartIT will conduct daily backups with 90 day retention. If Client terminates its services with CloudSmartIT, CloudSmartIT will no longer maintain backups of Client data. CloudSmartIT will not be responsible for any files in use at the time of these backups. CloudSmartIT will retain nightly incremental backups of all cloud file server data for only 90 days unless otherwise stated in the Order.
u. Privacy. It is the policy of CloudSmartIT to respect Client’s privacy and CloudSmartIT agrees to comply with all laws and regulations applicable to the gathering, processing, storing, transmitting and dissemination of personal information; provided, however, Client agrees that it will cooperate with CloudSmartIT to specify in the Client Notification of Legal and Regulatory Requirements and any applicable laws which may apply to its own gathering, processing, storing, transmitting and dissemination of personal information of its customers. In this respect CloudSmartIT will not disclose any personal information about Client’s Authorized Users, without Client’s prior written consent, unless such action: (i) is required by law or regulation, but only to the extent and for the purposes of such law or regulation; (ii) is in response to a valid order of a court or other governmental process; or (iii) is with written permission of Client, in compliance with any terms or conditions set by Client regarding such disclosure.
v. Client Seats. Client Seats are designated in the Order and may be increased or decreased in response to changes in operating conditions for the Client upon Client’s written request to CloudSmartIT and CloudSmartIT’s written acceptance of such request. Any change in the number of Client Seats will be reflected in the invoice for the next month following CloudSmartIT’s acceptance of the request. The number of Client Seats cannot be decreased below 50% of the initial Order for the Term set forth in the Order or 5 Seats whichever is higher during the Term. At the time of renewal, the Client Seats can be modified by the Client to any number with a minimum of 5 Clients Seats. Client Seats for the Cloud Workspace Services cannot be transferred or used by anyone other than Authorized Users.
w. Authorized Users Use of Hosting Services. The Client certifies that no Authorized User has been convicted of violation of any U.S. Federal or state regulation involving either the illegal use of any regulated telecommunications facilities or illegal distribution of commercial computer software or data and that neither he nor she, nor any other Authorized User has been removed from any other facility accessing the Internet for cause other than non-payment or voluntary cancellation by the Client. All Cloud Workspace Services provided to Authorized Users may only be used for lawful purposes. Transmission or storage of any information, data or material in violation of any U.S. federal or state regulations or law is prohibited, including, but not limited to, material protected by copyright, trade secret, or any other statute, threatening material, or obscene material. CloudSmartIT may, from time to time, impose additional reasonable and normal restrictions on the use of the Cloud Workspace Services. Authorized Users will be notified of such additional restrictions in advance if possible.
x. Additional Storage. Additional Storage is initially designated in the Order and may be increased or decreased in response to changes in operating conditions or adding additional computers. From time to time the Client may exceed the Additional Storage as designated in the Order. This increase in Additional Storage will be reflected in the normal monthly billing. Any change in Additional Storage will be reflected in the invoice for the next month following Clients increase or reduction in storage usage.
y. 3rd Party Application Support. CloudSmartIT will provide “best effort” in getting 3rd Party vendor issues resolved in a timely manner. However, all application solutions are the responsibility of the 3rd Party vendor. CloudSmartIT will not charge for being the technical liaison with software vendors if the Client issue takes less than 1 hour to resolve; however, if CloudSmartIT spends more than 1 hour trouble-shooting with the vendor, discounted labor rates apply.
z. Vendor Management. CloudSmartIT will assist the Client in dealing with admin issues related to communications vendors and CloudSmartITs such as ISP’s, telecom CloudSmartITs, etc., that impact the Client’s overall network operations. Any service needed due to vendors’ needs or problems are billable at the discounted rates.
7. Management and Monitoring Services.
a. Applicable Management and Monitoring Services. This Section applies to any Management and Monitoring Services to be provided by CloudSmartIT to a Client under an Order, and in the event that an Order references Management and Monitoring Services, the terms of this Section shall apply to such Management and Monitoring Services. CloudSmartIT shall provide Client with the Management and Monitoring Services as further set forth in the applicable Order subject to the terms of this Agreement.
b. Server/Workstation/Network Device Management and Monitoring. CloudSmartIT will provide the following Management and Monitoring Services:
i. CloudSmartIT will monitor servers, firewalls, & network devices covered under this agreement 24 hours a day, 7 days a week via an Internet connection;
ii. Servers covered under this agreement will be monitored for availability (up/down status) and performance metrics such as CPU, memory, hard drive disk health and hard drive free space and/or critical events based on installed server rolls along with receiving required Microsoft security patches. Critical application services reporting shall be in a stopped state. See Order for a list of applications.
iii. Firewalls and network devices covered under this agreement will be monitored for availability (up/down status) and performance metrics such as CPU and memory;
iv. Workstations covered under this agreement will be monitored for performance metrics such as CPU, memory, hard drive disk health and hard drive free space along with receiving required Microsoft security patches;
v. Macs covered under this agreement will be monitored for performance metrics such as CPU, memory, hard drive disk health and hard drive free space;
vi. Antivirus software installed on Workstations and/or Servers will be monitored for a valid license and if an infection occurs by which action will be taken by CloudSmartIT technical support team;
vii. Based on CloudSmartIT’s supported list of third party software (as updated from time-to-time), third-party software updates and operating system security updates will be performed based on weekly patching and approval by the CloudSmartIT technical support team;
viii. If a device covered under an Order becomes unavailable, a performance threshold is met, or a critical event occurs CloudSmartIT will be alerted. If necessary, CloudSmartIT will notify the Client of this alert during normal business hours (M-F, 8am-5pm) or if deemed necessary by CloudSmartIT technical support team the emergency contact listed in the Order;
ix. CloudSmartIT will create availability and performance reports for monitored devices as needed for Client and/or troubleshooting purposes. CloudSmartIT will provide a best effort to keep monitored data; and
x. CloudSmartIT will generate an Executive Summary Report on the 1st of each month detailing the health and wellness of the Clients’ network.
d. Connecting to Servers. CloudSmartIT will connect to servers covered under this agreement via an Internet connection and perform the following tasks as needed:
i. Review/Update Operating System critical security patches and service packs; and
ii. Review event logs as needed.
e. Connecting to Workstations. CloudSmartIT will connect to workstations covered under this agreement via an Internet connection and perform the following tasks as needed:
i. Review/Update Operating System critical security patches and service packs; and
ii. Review event logs as needed.
f. Services not Covered. Support service and backup services are not covered under this Section and not included as part of the Management and Monitoring Services. CloudSmartIT will only provide support service and backup services if stated in the Order.
g. Setup ad Installation. CloudSmartIT will establish a remote connection to Client’s servers, workstations and network devices. Client is responsible for all costs related to acquisition and installation of telecommunications to achieve this connection. Business class high speed Internet access is required. If necessary, CloudSmartIT will configure Client’s existing firewall to allow connectivity for remote access. CloudSmartIT will install the appropriate remote-control software and/or configure management protocols on all devices covered under the Order. CloudSmartIT will install and configure a remote monitoring probe on an existing server in Client’s network.CloudSmartIT will bring all servers and workstation up-to CloudSmartIT’s standards which include but are not limited to removal of unwanted software deemed by CloudSmartIT’s technical support team. An admin account for software updates and installation as well as general administration of the systems. This account belongs to CloudSmartIT and is not to be giving out to anyone but CloudSmartIT’s technical support staff. If Client needs admin access an account can be setup. The scope of these services is limited to the tasks as defined in Section. If necessary, CloudSmartIT will make provisions for establishing this service through the Client’s firewall. If CloudSmartIT personnel deem this task to be significantly more complex than our standard, routine process then the Client’s will be notified and advised of additional fees that may be required to achieve this installation.
h. Client Responsibilities. Client shall be responsible for the following:
i. Client must maintain a dedicated connection to their Internet Service Provider. A permanent public static IP address is required at customer cost. Appropriate telecommunication lines include T1, Cable, Fiber or DSL;
ii. Client must provide CloudSmartIT with a designated contact which will be solely responsible for all communication between CloudSmartIT and Client for any services outlined in this Section. Support calls or requests of any kind from other Client personnel are not covered under this Section or the Order;
iii. Client must provide CloudSmartIT with the contact and IP scheme information for the current ISP and other hardware/software vendors if applicable;
iv. Client must provide CloudSmartIT with all appropriate usernames and passwords required to access network resources (i.e. Administrator usernames and passwords, router telnet passwords); and
v. It is the responsibility of the Client to ensure that PRESCRIBED BACKUP OPERATIONS PERFORMED BY THE Client ARE adequate. CloudSmartIT will not be responsible for Client’s failure to do so, nor for the cost of reconstructing data stored on disk, tapes, USB, CLOUD STORAGE, etc., lost during the performance of service performed hereunder.
8. VOIP Services.
a. Applicable to VOIP Services. This Section applies to any VOIP Services to be provided by CloudSmartIT to a Client under an Order, and in the event that an Order references VOIP Services, the terms of this Section shall apply to such VOIP Services. CloudSmartIT shall provide Client with the VOIP Services as further set forth in the applicable Order subject to the terms of this Agreement.
b. Services Location; Moves. Client is responsible for providing an environment that is suitable for the VOIP Services, including equipment that is compatible with CloudSmartIT’s network. Client shall provide CloudSmartIT with the correct address to obtain Services because CloudSmartIT relies on such information to determine which taxes, fees, surcharges and assessments apply to Services. If Client does not provide a valid address, Client will be responsible for any resulting taxes, fees, surcharges, assessments and penalties related thereto. Client will notify Company if Customer’s address changes, in which CloudSmartIT may either (a) terminate the affected Services; or (b) allow Client to provide 60 days’ advance notice to CloudSmartIT to move Services to a new location and pay any applicable installation charges.
c. 911 Dialing. 911 Dialing will be implemented and operational with the Service. Service may not be used in any geographical area different from that reported to CloudSmartIT. With E911 service, when 911 is dialed, the telephone number and registered address is simultaneously sent to the local emergency center assigned to the Client’s location, and emergency operators have access to the information they need to send help and call back if necessary. By using this Service, Client authorizes CloudSmartIT to disclose your name and address to third-parties involved with providing 911 Dialing to Client, including, without limitation, call routers, call centers and local emergency centers.
d. Outages due to Electrical, Internet or other General Failures. Client acknowledges that the Services will not function in the absence of electrical power, access to the Internet or other general failures associated with the VOIP network. Client acknowledges that the Services will not function if there is an interruption of Clients broadband or high-speed Internet access service.
e. Disconnection of Current Provider; Special Construction; Third Party Charges. Client is solely responsible for disconnecting services with its current service provider. CloudSmartIT is not responsible for any charges assessed against Client by such provider. Client shall pay all charges if CloudSmartIT or a third-party provider is required to extend the demarcation point or undertake special construction for Client.
9. Proprietary Information.
a. New Developments; CloudSmartIT Materials. As between CloudSmartIT and Client, (i) all ideas, concepts, inventions and improvements coming within the scope of CloudSmartIT’s business, conceived by CloudSmartIT’s employees or independent contractors alone or with Client or Client’s employees or independent contractors in connection with the provision of Services and (ii) all software, trade secrets, know-how, tools, methodologies, and processes related to the Services, including, without limitation, all copyrights, trademarks, trade names, and other proprietary rights inherent therein or appurtenant thereto (collectively, the “CloudSmartIT Materials”) shall be the sole and exclusive property of CloudSmartIT.
b. CloudSmartIT’s Equipment. In the event that CloudSmartIT provides any equipment under an Order (“CloudSmartIT Equipment”), Client shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any CloudSmartIT Equipment or permit others to do so, and shall not use the CloudSmartIT Equipment for any purpose other than as authorized by the Order. Client be responsible for any damage to, or loss of, CloudSmartIT Equipment caused by its acts or omissions, or by fire, theft or other casualty. Upon termination or expiration of this Agreement and/or any applicable Order, Client shall be responsible for the return of all applicable CloudSmartIT Equipment or may purchase the CloudSmartIT Equipment from CloudSmartIT at its retail price. Until such time as the CloudSmartIT Equipment is returned to CloudSmartIT, CloudSmartIT may continue to invoice Client for the monthly fee applicable to such CloudSmartIT Equipment. If any returned CloudSmartIT Equipment has been damaged and/or destroyed, CloudSmartIT may, in its sole discretion, invoice for the replacement cost of such CloudSmartIT Equipment.
c. Third-Party Software. If an Order includes the use of third-party software (“Software”), Client shall have a nonexclusive, nontransferable, and limited license to use such Software only and solely to the extent necessary to use the applicable Services during the corresponding term. Client may not claim title to, or an ownership interest in, any Software (or any derivations or improvements thereto), and Client shall execute any documentation reasonably required by CloudSmartIT, including, without limitation, end-user license agreements for the Software. Customer shall not: (i) copy the Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of CloudSmartIT; (ii) reverse engineer, decompile, or disassemble the Software; (iii) sell, lease, license, or sublicense the Software; or (iv) create, write, or develop any derivative software or any other software program based on the Software. In the event this Agreement or an applicable Order is terminated for any reason, CloudSmartIT shall have the right to access Client’s network and/or computers in order to remove any Software provided by CloudSmartIT under this Agreement.
d. Confidential Information. The parties agree that “Confidential Information” (as defined below) may be disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement. Therefore, the Receiving Party agrees that it shall hold in confidence and, without the prior written approval of the Disclosing Party, shall not disclose to any third party, except to employees and subcontractors having a need to know, any Confidential Information provided to the Receiving Party by the Disclosing Party or any of its subsidiaries or affiliates. The Receiving Party agrees not to use Confidential Information for any purpose other than within the scope of this Agreement. For this Section “Confidential Information” means: (i) any information of the Disclosing Party, such as related technical data and know-how, financial information, customers, pricing, terms of sale, products, processes, plans, personnel, research and development projects or other aspects of the business of the Disclosing Party, a subsidiary or affiliate, until such information shall have ceased to be proprietary as evidenced by general public availability and knowledge; and (ii) information of a third party as to which the Disclosing Party, its subsidiary or affiliate has a non-disclosure obligation known to the Receiving Party. “Confidential Information” shall not include information already known to the Receiving Party prior to entering this Agreement or information that is publicly known. The Receiving Party understands and agrees that any breach of the covenants contained in this Agreement will cause irreparable injury and damages to the Disclosing Party for which there is no adequate remedy at law, and as to which money damages cannot be readily ascertained. Accordingly, the Receiving Party consents in such event to the granting of injunctive relief against any continuing breach, together with retrospective relief in the form of liquidated damages equal to the entire amount of all fees or other revenue collected by the Receiving Party for its efforts as a result of the breach.
e. Non-exclusivity. Client agrees and acknowledges that nothing in this Agreement shall be deemed exclusive and nothing shall restrict CloudSmartIT’s ability to provide similar services to third parties who may be considered competitors of Client so long as CloudSmartIT does not breach its confidentiality obligations.
10. Provisions Applicable to the Services.
a. Access. Client agrees to provide CloudSmartIT with physical access to its individual computer systems and networks in order for CloudSmartIT to perform its services. Client also agrees that CloudSmartIT may access its computer systems or networks via telephone, data line, Internet connection, or other means of communication, in order to perform services upon the systems or network.
b. Compliance with Regulations. CloudSmartIT shall comply with all applicable federal, state or local law, rule or regulation.
c. Records. CloudSmartIT agrees to keep accurate and complete records of the services it performs for Client. These records shall be the property of CloudSmartIT. These records will not include backups or copies of data from Client’s computer systems, unless necessary to perform services which are the subject of this Agreement. CloudSmartIT shall not be responsible for restoring data lost by Client from CloudSmartIT’s own records. Unless specifically set forth in an Order, CloudSmartIT shall not provide backup services to Client. Client is encouraged to utilize either the backup services offered by CloudSmartIT or the backup services provided by a third party.
d. Temporary Files. Client agrees and understands that CloudSmartIT deletes temporary internet files stored on Client’s computers and computer system. CloudSmartIT is in no way liable for any lost passwords or other information due to CloudSmartIT’s deletion of such files.
e. Remote Serve/Network Administration. CloudSmartIT will perform specific server/network administration tasks identified in this section during normal business hours (M-F, 8am-5pm). Any task not listed in this Section is not included in the Services.
f. Keys and Pass Codes. All keys to Client’s business and pass codes provided to CloudSmartIT by Client are provided to CloudSmartIT for Client’s benefit. Client agrees that CloudSmartIT shall not be liable for any damage to or loss of personal property that is related to CloudSmartIT’s use of any keys or pass codes.
g. QBR “Quarterly Business Review” Meetings. Quarterly meetings will be held to review service and service requests, discuss priorities for the following year, and to assess the overall satisfaction of the services being provided.
11. Representations and Warranties; Disclaimer.
b. CloudSmartIT Representations and Warranties. CloudSmartIT represents and warrants that: (i) it has full authority to enter into the Agreement, (ii) the Services shall conform to the description of work to be performed in the Order and shall be performed in a professional and workmanlike manner; (iii) the Work Product will conform in all material respects to the written specifications in the Order, (iv) the Work Product and the CloudSmartIT Materials will not violate or infringe upon the intellectual property rights of any third parties; and (v) CloudSmartIT will comply with all applicable laws and terms applicable to the Services.
12. Independent Contractor. CloudSmartIT hereby represents that it is an independent contractor and that the relationship between Client and CloudSmartIT created by this Agreement is an independent contractor relationship.
13. No Warranties or Guaranties. CLOUDSMARTIT MAKES NO OTHER REPRESENTATIONS, WARRANTIES, OR GUARANTIES, WHETHER EXPRESS OR IMPLIED, EXCEPT FOR THOSE SET FORTH IN THIS AGREEMENT IN WRITING, INCLUDING, WITHOUT LIMITATION, ALL REPORTS, SUMMARIES, INFORMATION OR RECOMMENDATIONS PREPARED OR ISSUED BY CLOUDSMARTIT, OR ADDITIONAL SERVICES, IF ANY, OR WITH RESPECT TO ANY OTHER MATTER HEREUNDER. CLOUDSMARTIT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLOUDSMARTIT FURTHER DISCLAIMS ANY WARRANTY REGARDING THE COMMERCIAL SUCCESS OR COMMERCIAL PERFORMANCE OF THE DELIVERABLES.
14. LIMITATIONS OF LIABILITY AND DAMAGES. IN NO EVENT SHALL CLOUDSMARTIT BE LIABLE, WHETHER IN CONTRACT OR IN TORT, FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, LOST OR DAMAGED SOFTWARE, OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF THE AGREEMENT OR OrderS, REGARDLESS OF WHETHER CLOUDSMARTIT HAD NOTICE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. In addition, the total liability of CloudSmartIT for any claim or damage arising from or otherwise related to this Agreement, shall not exceed the total amount paid to CloudSmartIT by Client under the applicable order.
15. Indemnification. Each party (the “Indemnifying Party”) shall indemnify, defend, and hold the other party (the “Indemnified Party”) harmless from and against any demand, cause of action, debt, or liability, including interest, penalties, court costs, and reasonable attorneys’ fees, based upon any third party claim or suit against the other party arising out of, or related to, the performance of any provision of the Agreement (including without limitation the representations and warranties set forth in this Agreement). In claiming any indemnification hereunder, the Indemnified Party shall promptly provide the Indemnifying Party with written notice of any claim that the Indemnified Party believes falls within the scope of this Paragraph 10. The Indemnifying Party shall provide a defense for the Indemnified Party with legal counsel of its own choice and reasonably satisfactory to the Indemnified Party, and shall pay the full amount of any settlement, judgment, or award. The Indemnified Party may, at its own expense, assist the defense if it so chooses, provided that the Indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim, and provided further that any settlement intended to bind the Indemnified Party may not be entered into without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnified Party shall use its best efforts to cooperate with the Indemnifying Party in any such defense. If the Indemnifying Party fails or refuses to provide a defense, then the Indemnified Party shall defend or settle the claim at its election, and the Indemnifying Party shall pay all costs of defense and any settlement, judgment, or award.
a. Assignment; Subcontractors. The rights and obligations of the parties under the Agreement may not be assigned or transferred without the written consent of the other party; provided that the Agreement and the rights and obligations hereunder may be assigned, without consent, to a third party that acquires all or substantially all the assets, business or ownership interests of a party hereto. CloudSmartIT may use subcontractors in connection with providing the Services pursuant to the Agreement.
b. Taxes. Client shall be responsible for applicable sales, use, or other taxes related to or arising from the Services, excluding CloudSmartIT’s income taxes. Client shall pay such taxes, or reimburse CloudSmartIT for such taxes, within thirty (30) days of CloudSmartIT invoice for these taxes.
c. Governing Law and Jurisdiction. The Agreements shall be governed in all respects by the laws of the State of Tennessee, without regard to its conflict-of-laws provisions. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Tennessee and any United States District Court situated in the State of Tennessee for the purposes of construing and enforcing the Agreement.
d. Amendment. The Agreement may be amended by CloudSmartIT posting a new and update Agreement to its website and notifying Client by email of such update.
e. Attorneys’ Fees. Should a dispute between the parties relating to the Agreement result in litigation or arbitration, if CloudSmartIT is the prevailing party, CloudSmartIT shall be entitled to recover reasonable attorneys’ fees and CloudSmartIT’s costs.
f. Paragraph Headings. Paragraph headings are for reference purposes only and shall not affect the interpretation or meaning of the Agreement.
g. Notices. Any notice required hereunder shall be made in writing by either hand delivery, nationally recognized courier, or certified mail, return receipt requested. Such notice shall be deemed given: (i) at the actual time of receipt if notice is given by hand delivery; (ii) on the date of delivery as set forth on a receipt provided by a nationally recognized courier service if notice is given by courier; or (iii) three business days after sending if notice is given by certified mail, return receipt requested. All notices given under the Agreement shall be sent to the addresses set forth on the first page of the Agreement. Either party may change the address to which notices are to be sent to it by giving notice of such change of address to the other party in the manner herein provided.
h. No Waiver of Performance. Failure by either party at any time to require performance by the other party or to claim a breach of any provision of the Agreement will not be construed as a waiver of any right accruing under the Agreement, nor affect any subsequent breach, nor affect the effectiveness of the Agreement or any part hereof, nor prejudice either party with respect to any subsequent action.
i. Entire Agreement. The Agreement and the above-referenced non-expired Orders constitute in aggregate the entire agreement between Client and CloudSmartIT with respect to the subject matter hereof and no representation or statement not contained in the Agreement shall be binding upon CloudSmartIT or Client as a warranty or otherwise. If any provision (or part thereof) of the Agreement is determined by a court of competent jurisdiction, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement shall remain in full force and effect and bind the parties according to its terms. The Agreement may be executed in multiple counterparts, all of which together will constitute one original document.
j. Force Majeure. CloudSmartIT shall not be liable for failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by accidents beyond CloudSmartIT’s reasonable control, such as, but not limited to fire, flood, or other natural disasters, or, embargo, court order, riot, or other intervention of any government authority, provided that CloudSmartIT immediately notifies Client of such delay. If CloudSmartIT’s performance is delayed for these reasons for a cumulative period of forty-five (60) days or more from the date of such notice, Client may terminate this Agreement by giving CloudSmartIT written notice.
k. Severability. The provisions of the Agreement are severable and if any provision is held to be unenforceable or invalid, it shall not affect the validity or enforceability of any other provision.
l. Construction. The language of all parts of the Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party.