Managed Service Agreement

THIS AGREEMENT is entered into between Heartland Business Systems, LLC, a Wisconsin limited liability company (“Provider”), with its principal offices located at 1700 Stephen Street, Little Chute, WI  54140, and the customer (“Customer”).

The terms of this Agreement include Provider’s Standard Terms and Conditions located at http://www.hbs.net/standard–terms–and–conditions (“ST&C”), which are incorporated herein by reference. Should any term contained in this Agreement directly conflict with any term in the ST&C, this Agreement shall control.

ARTICLE I

CUSTOMER REQUIREMENTS

1. In order to allow Provider to perform the services described herein (“Services”), Customershall provide the following:

1. Access.  Remote access to Customer’s network, and for any required on-site Services, physical access to Customer’s facilities and network (collectively the “Customer Environment”) to provide the Services.  Additional access requirements may be set forth within this Agreement.
2. Internet.  Adequate bandwidth, including sufficiently low latency and packet loss, for connectivity to the Internet.
3. Hardware.  Industry standard server, routing and firewall appliances, and such appliances shall have current manufacturer warranties.  Customer authorizes Provider to contact the applicable manufacturers on behalf of Customer for support if needed.  In the event that Provider agrees to provide remediation of any hardware failure, Provider shall separately invoice Customer for such work on a time and materials (“T&M”) basis at the applicable hourly rates.
4. Existing Environment.  In order for the Customer’s Environment to qualify for Services, all equipment, including PCs, Laptops, Servers, Switches, Routers, Firewalls, and Wireless controllers, must be running currently supported software versions as approved by the manufacturer.  All equipment, with the exception of end user PCs or workstations, must be covered by a manufacturer warranty and also protected by a current support contract.  However, equipment that initially meets these requirements may prove to be chronically failing, as determined by Provider.  In the event that this occurs, Customer shall be required to replace such equipment, or such equipment shall no longer be subject to this Agreement.

1. In order to allow Provider to perform the Services, Customer warrants and represents to Provider as follows:

1. Software.  That all its software licensing is genuine and that its support agreements are current.  Customer authorizes Provider to contact the applicable software vendors on behalf of Customer for support in accordance with the provision of the Services.
2. Data Security and Protection.  That the Customer Environment is protected by industry standard security and virus protection software.
3. Proper Backup.  That Customer’s data and system has been properly backed up prior to the commencement of any services provided by Provider, and Customer understands that Provider shall have no liability whatsoever, under any circumstances, for any damages that Customer suffers from Customer’s failure to backup data.

3. Customer Contact.  Customer shall only have its authorized personnel contact the Managed Services Team.  Contact may be by phone, email, Customer portal, or computer agent.  Customer shall provide a complete description of the issue and point of contact information including name, telephone number, and email.  Customer shall provide details regarding the urgency of the case, and Customer shall communicate this information within a reasonable time after becoming aware of the issue.
4. Additional Fees.  In the event that Provider is delayed in the performance of the Services by Customer’s failure to comply with any obligation in this Agreement, Provider shall separately invoice Customer for such additional time on a T&M basis at the applicable hourly rates.

ARTICLE II

ADDITIONAL TERMS AND CONDITIONS

1. Invoicing and Payment Terms.  Provider shall invoice Customer as outlined in the attached Quote, which includes monthly invoices for the recurring charges listed therein. Customer hereby commits to purchasing the quantities specified in the Quote for the entire term set forth on the Term tab in the Quote (the “Minimum Commitment”).  The amounts invoiced to Customer may not be reduced below the Minimum Commitment at any time.  For monthly or annual subscription-based licenses or services, Provider may adjust the billed quantities based upon Customer’s actual usage, provided that the amounts invoiced may not be reduced below the Minimum Commitment at any time.  Any products or services requested by Customer that fall outside the scope of this Agreement shall be invoiced separately.  Except as otherwise stated in the Quote, Provider shall have the right to update the pricing for this Agreement at any time by providing thirty (30) days’ prior written notice to Customer.
2. Failure to Pay.  Any invoice, whether for this Agreement or any other products or services provided by Provider, remaining unpaid after its due date shall be grounds for Provider to immediately withhold any Services covered by this Agreement or any other products or services, and shall be a default.  In the event of a default, Provider shall have the right, prior to providing any notice of default, to accelerate the payment of all amounts owed by Customer, which shall become immediately due and payable without notice or demand.  If Provider brings legal action to collect any amounts owed, Provider shall be entitled to recover all its costs, expenses, disbursements, and attorneys’ fees.
3. Travel Expenses.  Provider shall invoice Customer for all actual travel time at Seller’s then-prevailing hourly rates. In addition, Provider shall invoice Customer for any travel and business expenses incurred by Provider in connection with the performance of any Services for Customer.
4. Telco Fees.  In the event that Provider agrees to provide services involving Customer’s telephone or communications providers or related circuitry, Provider shall separately invoice Customer for such work on a T&M basis at the applicable hourly rates.
5. Term. The term of this Agreement shall commence on the Agreement effective date and shall continue each month until terminated pursuant to the following section.
6. Term and Termination by Either Party. Customer shall not have the right to terminate this Agreement during the specific initial term (which shall also include any renewal terms) listed in the attached Quote, for any reason. This Agreement shall remain in effect as a month-to-month agreement following the expiration of such term, and either party shall have the right to terminate this Agreement on or after the expiration of such term by providing at least thirty (30) days’ prior written notice to the other party, provided that if the termination date would fall on a day other than the last day of the month, the termination shall be effective as of the last day of that month.  On the date that this Agreement becomes month to month, the pricing for the Services shall automatically increase by 15%, and Supplier shall have the right to continue increasing the pricing for the Services by up to 15% per year.
7. Termination for Breach.  In the event of a default by one party, the non-defaulting party may provide written notice of the default and may terminate this Agreement at any time following the expiration of a reasonable opportunity to cure such default; provided that, if the defaulting party has cured the default prior to the expiration of such cure period, this Agreement shall remain in effect.  For purposes of this Agreement, a “reasonable opportunity to cure” shall be ten (10) days for a monetary or payment default and thirty (30) days for a non-monetary or non-payment default.  In the event of a subsequent default of any type, the non-defaulting party may immediately terminate this Agreement without any notice or opportunity to cure.  Furthermore, in the event of a default by Customer, Provider may pursue any rights or remedies that are available at law or equity, and Provider shall not be required to provide any additional services of any type, including but not limited to the transferring, providing or copying of any data or administrative access credentials, unless Customer has first paid all amounts owed to Provider and the amount charged by Provider for such additional services.
8. Indemnification.  Customer shall indemnify, defend and hold harmless Provider from any and all damages, claims, actions, investigations, proceedings, losses, costs, and other related expenses (including actual attorneys’ fees) arising out of: (i) any breach of this Agreement by Customer; or (ii) any breach of any of the representations or warranties made by Customer in this Agreement; and (iii) any alleged violation of any rights of another, including, but not limited to, Customer’s use of any content, trademark, service mark, trade name, copyrighted or patented material, or other intellectual property of its own or of any third party.  The indemnification rights are independent of, and in addition to, such rights and remedies as Provider may have at law or in equity or otherwise.
9. Limitation of Liability.  The Services shall be provided in substantial conformance with this Agreement and any attached documents.  Except for the foregoing, Provider makes no warranties or representations of any kind.  Except as specifically provided in this Agreement, Provider shall have no liability or responsibility to Customer or to anyone else with respect to any liability, loss, or damages arising out of, or relating to, the operation or non-operation of the Services.  Provider hereby specifically disclaims any and all other warranties, whether express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose in connection with this Agreement or Provider’s provision of, or failure to provide, the Services.  In addition, Provider shall not be liable for any indirect, incidental, consequential, reliance, punitive or special damages.  Notwithstanding anything else contained herein, the sole and entire maximum liability of Provider to Customer for any and all proven loss, claim, damages or liability of any kind (including but not limited to contract, tort or otherwise) with respect to all Services provided by Provider and any act or omission of Provider will consist of a duty to refund not more than the total amount actually paid by Customer to Provider for the Services under this Agreement during the one-year period immediately preceding such loss, claim, damage or liability.
10. Service Operation Disclaimer.  Customer authorizes Provider to view any information related to the process of performing system repairs or improvements.  Customer also authorizes Provider to delete, change, or rewrite any information to the extent necessary to complete any system repair or improvement in a manner consistent with industry standards and practices.
11. Notices.  Any notice or other communication hereunder shall be in writing and shall be deemed to have been duly given (a) upon receipt (or refusal of receipt) if delivered personally, (b) when sent by electronic mail or facsimile transmission, (c) when sent by overnight courier service, (d) when mailed by first class mail, postage prepaid, or (e) when mailed by certified or registered mail, return receipt requested, with postage prepaid to the parties at the following addresses, or to such other address as a party may designate in writing:

If to Provider:

Heartland Business Systems, LLC
Attention:  Legal Department
1700 Stephen Street
Little Chute, WI  54140

If to Customer:
Address Specified in Quote

ARTICLE III

RENTAL OF EQUIPMENT

In the event that the Quote attached hereto includes the rental of any equipment, the following supplemental terms and conditions shall apply to such rental of equipment.

1.        Rental of Equipment.  Provider hereby rents to Customer and Customer hereby rents from Provider the equipment described in the Quote attached hereto (the “Equipment”) for the rental amount and on the terms set forth in this Agreement.  This is a rental only and Customer will have no right, title or interest in or to the Equipment except for the use of the Equipment as described in this Agreement.  This shall be treated as a true rental for federal and applicable state income tax purposes with Provider having all benefits of ownership of the Equipment.  Provider shall have the right to file a Uniform Commercial Code Financing Statement for this Agreement, at Customer’s expense.
2. Term.  This Equipment rental, unless terminated earlier in accordance with the terms of this Agreement, shall continue for the term listed in the Quote.  Notwithstanding Article II.F., the Equipment rental shall not extend beyond the expiration of the term listed in the Quote.
3. Rental.  Customershall pay Provider monthly rental and other payments according to the Quote.  Customer shall pay all costs, expenses, fees, charges, and taxes (other than federal and state income taxes on the income of Provider) incurred in connection with the registration, delivery, use or operation of Equipment during the term.
4. Delivery.  If Provider is not retaining the Equipment at Provider’s premises, Customer shall be responsible for all costs of shipping the Equipment to Customer’s premises, installation, and set up, and all costs of shipping the Equipment back to Provider upon termination or expiration of the term.
5. Location.  If Provider is not retaining the Equipment at Provider’s premises, Customer shall keep the Equipment in Customer’s possession and control at Customer’s premises or such other location as Provider may consent in writing.  Upon request, Customer will advise Provider as to the exact location of the Equipment.  Provider may inspect the Equipment during normal business hours, and Customer shall provide Provider access for such purpose.
6. Operation.  Customer will operate the Equipment carefully and properly in compliance with all applicable governmental, insurance and manufacturer’s warranty requirements and all manufacturer’s instructions.
7. Alterations.  Customer shall not make any alterations, additions or improvements to any Equipment which detract from its economic value or functional utility.
8. Maintenance.  Customer shall, at its expense (i) maintain the Equipment in good condition, and repair, in accordance with all manufacturer’s instructions and warranty requirements and all legal requirements, and keep the Equipment free from any ransomware, malware, spyware, viruses and similar devices, and (ii) furnish all labor, materials, parts and other essentials required for the proper operation and maintenance of the Equipment.
9. Surrender of Equipment.  Upon the termination or expiration of the term, Customer shall surrender the Equipment to Provider by delivering the Equipment to Provider in good condition and working order, ordinary wear and tear excepted, as it was at the commencement of the Agreement.
10. Risk of Loss.  Customer assumes and agrees to bear the entire risk of loss of, theft of, damage to or destruction of any Equipment from any cause whatsoever (“Casualty Occurrence”).  In the event of a Casualty Occurrence to any Equipment, Customer shall give Provider prompt notice of the Casualty Occurrence and thereafter will place the applicable Equipment in good repair, condition and working order; provided, however, that if the applicable Equipment is determined by Provider to be lost, stolen, destroyed  or damaged beyond repair, Customer agrees to pay Provider no later than the date thirty (30) days after the date of the Casualty Occurrence all amounts owed.  Upon such payment, this Agreement will terminate with respect to such Equipment.
11. Insurance.  Customer shall procure and continuously maintain all risk insurance against loss or damage to the Equipment from any cause whatsoever for not less than the full replacement value, naming Provider as loss payee.  Such insurance must be in a form and with companies approved by Provider, must provide at least thirty (30) days advance written notice to Provider of cancellation, change or modification in any term, condition, or amount of protection provided therein, must provide full breach of warranty protection and must provide that the coverage is “primary coverage.”  Customer shall provide Provider with an original policy or certificate evidencing such insurance.
12. Customer shall indemnify, defend and hold Provider harmless from any and all damages, claims, actions, investigations, proceedings, losses, costs, and other related expenses (including actual attorneys’ fees) that may arise out of any loss, damage, theft or destruction of any Equipment, or that may arise out of the use, operation or condition of any Equipment.
13. Additional Remedies.  Upon the occurrence of a default by Customer as described in Article II.G., Provider shall also have the right to exercise concurrently or separately (and without any election of remedies being deemed made), the following additional remedies:  (a) Provider may demand and receive immediate possession of any or all of the Equipment from Customer, without releasing Customer from its obligations under this Agreement; if Customer fails to surrender possession of the Equipment to Provider on default (or termination or expiration of the term), Provider shall have the right to enter upon any premises where the Equipment may be located and to remove and repossess the Equipment; (b) Provider may enforce performance by Customer of its obligations under this Agreement; (c) Provider may recover damages and expenses sustained by Provider by reason of Customer’s default including all costs, expenses, and attorneys’ fees; (d) upon written notice to Customer, Provider may terminate Customer’s rights with regard to the Equipment.  The remedies set forth in this section are in addition to any other remedy provided in this Agreement or any other remedy provided by law or in equity.
14. Transfer.  Customer will not sell, lease, transfer an interest in or allow a lien against the Equipment or transfer any obligation under this Agreement.
15. Warranty.  All Equipment and parts provided by Provider are provided on an “as is” and “as available” basis.  Provider has not, and does not, make any warranties, whether express or implied.  This disclaimer of warranties includes the warranties of fitness for a particular purpose, warranties of merchantability or warranties of title.

ARTICLE IV

SECURITY MONITORING AND TESTING

In the event that the Quote attached hereto includes any security monitoring and testing services, the following supplemental terms and conditions shall apply to such services.

1. Certain laws prohibit any unauthorized attempt to test, monitor or penetrate computer systems.  Customer acknowledges and authorizes all Provider consultants engaged on this service and project to perform the security services.  Furthermore, Customer acknowledges that all services provided under this Agreement constitute authorized access to Customer’s information systems.
2. Provider’s security consultants will perform security testing and monitoring that could unintentionally be disruptive to the targeted system(s), and such security consultants may unintentionally be provided access to confidential information. Testing and monitoring include network-based vulnerability identification, patch/hotfix and configuration checking, and monitoring system security.  Customer acknowledges and agrees to the following:

1. Customer certifies that Customer has the legal right to agree to these terms and conditions for the IP addresses and URLs provided to Provider.
2. Customer authorizes Provider to perform security testing and system security monitoring activities of Customer’s selected network assets.
3. The various reconnaissance and network testing will likely produce alerts by network and host-based intrusion detection systems.
4. Large amounts of log messages may be generated, resulting in excessive log file disk space consumption.
5. The operational availability of Customer’s systems and network may be temporarily degraded or halted during the testing and monitoring.
6. While rare, it is possible that computer systems or network devices may become unresponsive or crash as a result of testing and monitoring.  This will require Customer to “reset” the system.
7. Customer hereby accepts all risks associated with these services, and Customer accepts all responsibility for the consequences of a system failure that may be caused by these services.

SCHEDULE A:  SCOPE OF MANAGED SERVICES

The scope of managed services provided may vary depending on the exact services purchased.  The scope of services may include the following:

Reporting, Management, and Tracking

Provider will provide monthly reports detailing:

• Service tickets – Opened, Resolved, In Progress
• Asset inventory under management
• Time usage for service tickets
• Monitored alerts for assets under management

Alert Notifications

When an alert is generated from Provider’s monitoring platform, Provider’s Managed Services Team will receive the notification and contact Customer based on the escalation policy defined during onboarding.  Escalation may include a phone call or email to Customer staff or Provider service personnel.

Diagnosis and Troubleshooting

Network diagnosis and support issues shall be performed remotely for all network devices covered with a managed services plan under this Agreement.  Any remediation efforts shall be invoiced separately on a T&M basis at the applicable hourly rates.

Customer authorizes Provider to install a remote support agent on applicable devices so as to enable remote monitoring and allow Provider access to the managed systems.

Additional line of business application updates by Provider that are not listed in this Agreement shall be subject to additional monthly fees.

Patching

If Customer’s managed services include patching of servers or workstations, patching will be automated and conducted on a scheduled basis via automated patching application.  Patching includes various levels of security patches, but does not include Windows feature pack updates.

Provider shall only conduct patching during the approved patching window as designated by Customer during onboarding, unless otherwise agreed upon by the parties.  Patching will be conducted on a best efforts basis, based upon Provider’s recommended patching policies.  Patch applications troubleshooting for specific devices shall be invoiced separately on a T&M basis at the applicable hourly rates.

Manual patching of servers or applications is not included unless expressly stated in the attached Quote.

Patching often requires systems to be rebooted.  Automated reboots will take place during the patching window.  Customer must ensure that all documents are saved prior to the scheduled patching window.  Provider shall not be liable for any loss or damages, including lost changes to open documents, that occur as a result of patching.

Out of Scope.

Any work or material not specifically identified in this document or the attached Quote is not included in this Agreement.

SCHEDULE B:  PROVIDER STANDARD SLA

Managed Services Schedule

Business Hours:  Monday – Friday 7:00 am – 6:00 pm CST, not including holidays.

After Hours: Engineers are on call 24×7.

Support Requests shall be made by Customer via phone or email as noted below:

Managed Services Phone Number:  1-844-626-2443

Managed Services Email Address:  [email protected]

After-hours rates apply for any work performed outside of the business hours stated above.  For after-hours or emergency work, Customer must call the phone number above, leave a voicemail, and the on-call engineer will return the call promptly.  Email tickets submitted after hours will be responded to the next business day.

The following response times apply to telephone calls, voice messages, or monitored alerts received by the Managed Services Team during the normal business hours stated above.  Problems reported by e-mail to the Managed Services Team, or cases created in the Customer Portal, will be responded to within 24 hours.

Emergency tickets must be called in to receive top priority

Minimum .25 hour charge applies per support request at the applicable support rate.