MONTH-TO-MONTH SUPPORT SERVICES SUBSCRIPTION TERMS
Effective January 1, 2019
These Month-to-Month Support Services Subscription Terms (“Agreement”) set forth the terms and conditions pursuant to which IncWorx, Inc. (“IncWorx”) provides certain Services described below to the entity or person placing an order for Services (“Customer”). The “Effective Date” of this Agreement is the date IncWorx accepts an order in accordance with Section 1.2 below and continues until terminated in accordance with Section 3 below.
IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
1. Scope of Services. IncWorx offers consulting and administration services (“Services”) to assist Customers with their use of various Microsoft, and other third party vendor, software and services (“Supported Products”). The Services are provided on a subscription basis for the specified Service Period (as such term is defined in Section 3.1).
1.1 Package Types. The Services are offered in different package types, including (i) “Professional”, as further described at https://www.incworx.com/microsoft-professional-support-services; and (ii) “End User”, as further described at https://www.incworx.com/microsoft-end-user-support-services.
1.1.1 Professional Package Details.
a. Service Hours: 9am-5pm
b. Response Time SLA: 4 hours
c. Communication Options: Web Ticketing System, Email, Phone
d. Support Areas: Administration, Development, Advisory, End User
e. Supported Products for this package type include: SharePoint, Office 365, Microsoft Teams, Delve, Forms, OneDrive, Skype for Business, Stream, Sway, Yammer, Flow, PowerApps, .NET, SQL Server, Windows Server, Active Directory, Azure SaaS, Azure PaaS (IncWorx may, at its sole discretion, provide support under this Agreement, at Customer’s request, for additional products not listed herein)
1.1.2 End User Package Details.
a. Service Hours: 9am-5pm
b. Response Time SLA: 4 hours
c. Communication Options: Web Ticketing System, Email, Phone
d. Support Areas: End User
e. Supported Products for this package type include: SharePoint, Office 365, Microsoft Teams, Delve, Forms, OneDrive, Skype for Business, Stream, Sway, Yammer, Azure Active Directory (IncWorx may, at its sole discretion, provide support under this Agreement, at Customer’s request, for additional products not listed herein)
1.2 Ordering Services. Customer may purchase Services for Supported Products by issuing an order to IncWorx by (i) online order form located at https://www.incworx.com/support-services-subscription; or (ii) contacting an IncWorx representative and completing an order via phone or email. An order confirmation email will be sent to Customer signifying acceptance of the order by IncWorx.
2. Fees and Payments.
2.1 Service Fees. Customer agrees to pay all fees due for any accepted order, and for each Service Period thereafter, until this Agreement is terminated in accordance with Section 3 below.
2.2 Payment by Credit Card. If paying by credit card, Customer authorizes IncWorx to charge Customer’s credit card or bank account for all fees payable under this Agreement. Customer further authorizes IncWorx to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
2.3 Payment against Invoice. If paying by invoice, IncWorx will invoice Customer no more than forty-five (45) days before the beginning of each Service Period, and other times during the subscription when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise agreed to in writing.
2.4 Payment Information. Customer agrees to keep its contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non-cancellable. All fees are due and payable in advance of each Service Period.
2.5 Sales Tax. Customer agrees to pay any taxes applicable to Customer’s purchase of Services.
2.6 Rate Increase. Because there is no annual contract, the monthly rate for Services is subject to change. Customer will be notified of any change in monthly fees for Services with at least thirty (30) days advance notice with the option to cancel in accordance with the terms set forth in Section 3.2.
2.7 Non-refundable. All fees for Services under this Agreement are non-refundable.
3. Term and Termination
3.1 Term. IncWorx will provide Services for an initial term of one (1) month, and such initial term will be renewed automatically for subsequent one (1) month periods (each a “Service Period”) and will continue without renewal notice until either party gives the other party written notice of its intent not to renew in accordance with Section 3.2 below. Each Service Period begins on the first day and ends on the last day of the month. Service begins the first of the month immediately following acceptance of an order from Customer by IncWorx.
3.2 Termination. Either party may terminate this agreement at any time upon fourteen (14) days written notice. The provisions concerning confidentiality, all limitations of liability, disclaimers and restrictions of warranty, and any terms which, by their nature, are intended to survive termination or expiration of this Agreement will survive any termination or expiration of this Agreement and any order. Customer agrees that termination does not relieve Customer of any obligation to pay any accrued charges. Charges continue to accrue up to and including the effective date of termination. Customer will not receive a refund for any partial Service Periods. Customer agrees to pay any outstanding balance in full within thirty (30) days of cancellation or termination of this agreement.
3.2.1 Termination Notice. Customer’s written notice of cancellation, intent not to renew, or termination of Agreement must be sent by: (i) email to [email protected]; or (ii) letter via certified mail to the following address: IncWorx, Inc., 1901 North Roselle Road, Suite 800, Schaumburg, Illinois, 60195, Attn: Subscription Termination.
3.3 Suspension of Services. IncWorx may, at its sole discretion, suspend delivery of Services under this Agreement due to Customer’s failure to remit payment for the then-current Service Period. Failure to remit payment within ten (10) days from the start of the Service Period will result in automatic termination of this Agreement effective immediately and in accordance with the terms contained in Section 3.2.
4. Delivery of Services. Services under this Agreement shall be delivered by IncWorx remotely unless otherwise agreed to in writing by both parties. IncWorx guarantees the capacity to deliver Services under this Agreement up to and including 1.5 times (1.5x) the amount of hours purchased for the then-current Service Period. IncWorx may, at its sole discretion, exceed this threshold, but in no event shall IncWorx be expected to provide Services under this Agreement within a given Service Period in excess of the sum of (i) the hours purchased for the then-current Service Period; and (ii) any accrued Rollover Hours. Any time spent for consulting, research, investigation, discovery, meetings, phone calls, testing, and any other activities performed for Services under this Agreement will be logged as billable time and in minimum thirty (30) minute increments.
4.1 Exceeding Hours Available. If the actual hours needed exceed the hours available to Customer for the then-current Service Period, Customer may purchase additional hours at the rate of $199 USD per hour under a separate order via the Pay-As-You-Go Consulting program (“PAYG”). PAYG hours are subject to the terms and conditions of the PAYG program and are not subject to the terms and conditions of this Agreement.
5. Rollover Hours. Unused hours within a given Service Period (“Rollover Hours”) will carry forward in perpetuity from one Service Period to the next based on the following terms and conditions: (i) Rollover Hours remain eligible for Services only for active accounts that are in good standing; and (ii) Rollover Hours expire immediately upon either a break in service or termination of service. There are no refunds under any circumstances for unused hours, rollover or otherwise.
6. Subscription Modifications. Customer may increase or decrease the number of hours purchased for future Service Periods with no less than fourteen (14) days written notice. IncWorx reserves the right to delay an increase in hours in order to ensure resource availability and service quality. The new hourly allotment must begin on the first day of a month. An increase or decrease in hours is subject to a change in Customer’s monthly fee which will be determined by IncWorx and presented to Customer. If, upon receiving notice from IncWorx of a change in fees as a result of an increase or decrease in hours, Customer may opt out of the change within five (5) business days and remain on the then-current hour allotment and fee structure.
7. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
8. Non-solicitation. Customer agrees that it will not solicit or otherwise hire or retain in any capacity the services of any employee or subcontractor of IncWorx, having performed Services under this Agreement, for a period of 18 months following termination of this Agreement. In the event Customer is found to be in violation of this provision, Customer agrees to pay a sum equal to $50,000 USD to IncWorx for each violation, within fifteen (15) business days of the violation. Customer further agrees to reimburse IncWorx for all reasonable expenses, including attorney fees, necessary to enforce this provision in the event Customer is found to be in violation of this provision.
9. Warranty and Limitation of Liability. IncWorx warrants and represents that the Services provided hereunder shall be delivered in a reasonable and workmanlike manner and in keeping with the standard practices and protocols recognized in the industry. IncWorx excludes and disclaims all other warranties whatsoever, whether express, implied or statutory, including any warranty of non-infringement, merchantability or fitness for particular purpose. Notwithstanding any other provision of this Agreement, neither party shall be liable to the other whatsoever for any special, consequential, indirect, exemplary or punitive damages, including any damages on account of lost profits, lost data, loss of use of data, or lost opportunity, whether or not placed on notice of any such alleged damages and regardless of the form of action in which such damages may be sought. IncWorx total cumulative liability, if any, to Customer or any third party, for any and all damages arising or in connection with this Agreement, including, without limitation, those from any negligence, any act or omission by IncWorx or its representatives, shall not exceed the amount actually paid or payable by Customer to IncWorx during the prior twelve (12) months under this Agreement.
10. Indemnification. To the fullest extent permitted by law, each party shall indemnify and hold harmless the other party and all of their agents and employees from and against any and all claims, damages, loss, liability, personal injury, property damages and fines and expenses, including but not limited to reasonable attorney’s fees, arising out of or in connection with the performance of work under this Agreement, including but not limited to any negligent or willful act or omission, arising out of the performance of work under this Agreement.
11. Confidential Information. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, rates and financial information that it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Except as expressly authorized herein, the Receiving Party will (i) hold in confidence and not disclose any Confidential Information to third parties; and (ii) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that: (i) such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11; and (ii) the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 11. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (1) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (2) is or has become public knowledge through no fault of the Receiving Party; (3) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (4) is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
12. Severability. Each provision herein shall be separate and independent from all other provisions, and a breach of any single provision shall in no way prevent the performance of all other valid provisions. In addition, a breach of one provision does not otherwise discharge, terminate or relieve the parties from the performance of all other remaining provisions.
13. Access to Sensitive Data. Customer agrees that IncWorx will not have access to any sensitive data including: Personally Identifiable Information (PII), Patient Health Information (PHI), Payment Card Industry Information (PCI), Student Education Records, Student Loan Application Information, Social Security Numbers, and/or other forms of highly sensitive data. If IncWorx is exposed to this type of data, IncWorx will not be subject to any liability associated with having access to these types of data or breaches of this type of data.
14. Amendments. IncWorx may amend these terms and conditions at any time by reasonable notice, including without limitation by posting revised terms at https://www.incworx.com/support-services-subscription which amended terms and conditions shall be binding upon you.
15. Governing Law. The laws of the State of Illinois shall govern this Agreement. Any litigation arising from this Agreement shall be presented and tried in the courts of Cook County, IL.
16. Entire Agreement. This Agreement and the attachments and exhibits hereto represent the entire Agreement between the parties and supersede any prior understandings or Agreements whether written or oral between the parties respecting the subject matter herein. This Agreement may only be amended in a writing specifically referencing this provision and executed by both parties. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns, subject to the limitations contained herein. The unenforceability, invalidity or illegality of any provision of this Agreement shall not render any other provision unenforceable, invalid or illegal and shall be subject to reformation to the extent possible to best express the original intent of the parties.