Network Services Agreement

1. PRODUCT SPECIFIC PRICE AND FEES: Monthly support fees are a fixed fee based on the plan (NetManage Complete or Essential) and the equipment identified as covered within the environment. This agreement does not include new additions, upgrades and changes to the environment. New additions, upgrades, and changes will be billed hourly until added into plan cost. Additional servers and systems added to the client environment will automatically increase the monthly service fee accordingly. Client will provide a designated point of contact that can authorize service requests. Client’s network will be monitored for problems 7/24/365. Alerts generated during the monitoring will be responded to during normal business hours. After hours emergency response to alerts are billed as a surcharge as detailed below. Client must initiate and or pre-approve after hour emergency procedures. Rates may be changed at any time, subject to such notice as may be required by law. All appropriate sales, excise and other taxes and surcharges required by law, state and federal regulation will also apply.

Consulting and Emergency Rates- client will pay ITS for consulting services outside the NetManage agreement at the then published rate. Consulting visits are invoiced in minimum increments of two-hours per visit. One way travel charges shall apply to each visit outside 20 mile coverage area.

After Hours service includes the hours between 5:00 p.m. and 8:00 a.m. Monday through Friday including holidays and will be billed at the overtime rate of 150% of the then published hourly rate. Emergency service is available by calling ITS at 1-800-876-4ITS. An on-call engineer will be located and will return the call within two-hours of notification. Once on-site the NetManage Complete plan includes an escalation procedure would the on-call engineer be unable to resolve the identified issue. The minimum charge for contacting the emergency response center is one hour billed at 200% of the then published hourly rate. Due to fluctuation in the technology labor market, ITS reserves the right to decrease or increase hourly rates at any time with 90 days prior notice. Labor rates do not include any product or out of pocket expenses which will be invoiced separately by ITS. Out of pocket expenses will be billed at actual cost.

2. PAYMENT: After initial deposit, payment for monthly support fees are due and payable in full on the date indicated on the Client’s invoice from ITS.. Each individual signing this Agreement on behalf of a corporation, limited partnership, limited liability company or other entity agrees that he or she is personally liable for all amounts owed to ITS hereunder. In making this application, the Client Authorized Agent/Owner/Officer hereby agrees and guarantees that all amounts will be paid within 25 days after the invoice date. After such period, Client will be charged a LATE FEE of $25.00 and a FINANCE CHARGE on all delinquent amounts owed to ITS. The FINANCE CHARGE is computed by applying the monthly periodic rate (as hereinafter defined) to all outstanding delinquent balances. The monthly PERIODIC RATE is equal to 1.5%, which is equivalent to an ANNUAL PERCENTAGE RATE of 18%. If Client’s financial responsibility or condition reasonably appears to warrant other action, ITS may decline to provide any further service, or may require payments in advance, deposits or other guarantees to satisfy ITS that invoices will be paid when due. ITS may suspend service to the Client at any time for non-payment. ITS will charge a $30.00 fee for any returned check.

3. FORCE MAJEURE: ITS shall not be liable to client for any loss, cost, or damages for any inadequacy, stoppage, interruption or discontinuance of service to Client, or any failure by ITS to perform in accordance with the terms of this Agreement, caused by factors beyond the reasonable control of ITS, which includes, without limitation, failures and defects in telephone lines, cables, junctions or other hardware and equipment, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, insurrections, riots, governmental action, explosions, fire, floods, or earthquakes. Notwithstanding the occurrence of any such event, Client shall continue to pay and remain responsible for ITS fees and services. However, ITS may, at is sole discretion, (a) cancel this Agreement; or (b) modify its service as ITS deems reasonable or necessary.

4. INTERPRETATION: This Agreement, contains all terms, covenants, conditions, and agreements between the parties hereto relating to the subject matter of this Agreement and no prior agreement, understanding or representation, either oral or written pertaining to the same, shall be valid or of any force or effect. The language in all parts of this Agreement shall be construed according to its fair meaning and not strictly for or against any of the parties hereto, irrespective of who wrote the same.

5. ATTORNEY’S FEE: If any legal action arises under or with respect to this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses, including attorney’s fees, incurred in enforcing this Agreement (including any appeals).

6. LOCATION OF LEGAL PROCEEDINGS: Should a Client terminate this Agreement, such termination shall not affect the liability of the Client’s accounts and amounts then owing from Client. All legal proceedings will take place in the City of Simi Valley, Ventura County, California.

7. ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns. Client may not assign its rights or interests under this Agreement without ITS’ express prior written consent and any attempted assignment without such consent shall be null and void ab initio. Furthermore, in the event of an approved assignment change, both parties shall accept responsibility for payment of services and the respective accounting there of.

8. DISCLAIMER: Except as otherwise stated herein, ITS makes no warranty, express or implied, with respect to the provision by it service hereunder, and disclaims any express or implied warranty of merchantability or fitness for a particular purpose with respect to such services. Further, in no event shall ITS be liable for, and ITS expressly disclaims any liability for actual profits, which client (or any of Client’s clients) may suffer as a result of ITS provisioning of or failure to provide services, or the use or non-use of such services by the client. ITS expressly disclaims any representation or warranty regarding any percentage of savings regarding the use of any services provided by ITS.

9. IN CASE OF ERROR OR INQUIRIES ABOUT YOUR BILL:

A. If you think there is a mistake on your invoice, or if you need more information, simply follow the instructions below. On a separate sheet of paper, write the following:

      (1) Your name and account number
      (2) The dollar amount of the suspected error
      (3) A description and explanation of the error (to the extent you can explain why you believe it is an error). If you need more information,            explain the item you would like to know more about.
      (4) Any other information that you think will help us to identify the reason for your complaint or inquiry.
      (5) Send your billing inquiry to:

                     ITS – Integrated Telemanagement Services, Inc.
                     Attn: Dispute Department
                     4100 Guardian Street, Suite 110
                     Simi Valley, CA 93063

NOTE: Be sure to mail it in time to reach us within 60 days after the invoice was mailed to you.

B. ITS will acknowledge all letters, which point out possible errors within 30 days of receipt unless we are able to correct your invoice during those 30 days. Within 60 days after receiving your letter, we will either correct the error or explain why we believe the invoice is correct. Once we have explained the invoice, we have no further obligation to you even though you may still believe that there is an error, except as provided in paragraph D. If you notify us according to paragraph A, the following actions cannot be taken unless and until we have either corrected the error or sent you a written explanation of why we believe your invoice to be correct.

(1) Neither we nor an attorney nor a collection agency may send you collection letters or take other collection action with respect to the amount      in dispute.
(2) You cannot be threatened with damage to your credit rating or sued for the amount in question, nor can the disputed amount be reported      to a credit bureau or other creditors as delinquent.

(3) HOWEVER, YOU REMAIN OBLIGATED TO PAY THE PORTION OF YOUR INVOICE NOT IN DISPUTE, AND WE CAN CONTINUE TO SEND YOU      PERIODIC BILLS. C. If it is determined that we have made a mistake in your billing, you will not have to pay any finance charges on any      disputed amount. If it is determined that we did not make a mistake in billing the disputed amount,you will be given the time to pay      which you normally are given to pay undisputed amounts before any additional finance charges on the disputed amount can be charged to      you.

D. If our explanation does not satisfy you and you notify us in writing within 10 days after you receive our explanation that you still refuse to pay the disputed amount, we may report to credit bureaus and other creditors, and may pursue regular collection procedures including a lawsuit. If we settle the dispute with you, it is your responsibility to notify those to whom we reported you as delinquent that there was a later resolution of the dispute.

10. TERM AGREEMENT DEFINITIONS: Clients terminating this agreement at anytime prior to the Term period will pay early termination fees. All current and prior services billed will be recalculated at the non-discounted published hourly rate. . In addition, install charges that were originally waived because of the term period will be charged on the next invoice. Client is subject to early termination fee if they request to terminate their agreement or stop making monthly payments during their agreement period.

This Agreement will be renewed for a like Term unless terminated in writing by either party, 30 days prior to the conclusion of the agreed upon Term. All other provisions of this Agreement remain in effect until the date that the Client requests to cancel this agreement. The Effective Date of this Term Agreement is established on the first page of this Service Agreement.

12. WARRANTY: ITS warrants that all services will be performed in a professional manner. ITS provides a warranty of good workmanship for a period of 30 calendar days from the completion of work, with regard to all services provided under this agreement. This warranty shall be the only warranty made by ITS, and is in lieu of all other warranties, express or implied.

13. LIMITATION OF LIABILITY: If any work performed by any employee or agent of ITS results in damage to Client’s systems or equipment ITS liability will be limited to repair or replacement (at ITS’ option) of the damaged systems or equipment.   ITS shall not be liable for any indirect, special, or consequential damages arising out of this agreement. No obligations or liability shall arise out of employee’s or ITS’ rendering of technical or other advice in connection with the services rendered hereunder. Client acknowledges that there are certain risks while working with computer equipment and the loss of data is always a possibility. Client accepts responsibility for creating a backup of their data and agrees to hold ITS harmless for any loss of data that may occur during or after a service performed by ITS.

ITS shall not be liable for any indirect, special, or consequential damages arising out of this agreement. No obligations of liability shall arise out of ITS Representatives, Employees, or Owners rendering of technical or other advice in connection with the services rendered hereunder.

ITS does not provide warranties for nor cover natural disasters including but not limited to fire damage, water damage, smoke, earthquake, tornado or other acts of nature.

ITS does not provide warranties for, nor cover neither equipment nor labor performed that has been adversely affected by use outside the scope of the manufacturer’s intentions. ITS adheres to the technology industries standards of best practices.   Work performed outside the scope of said best practices will not be warranted.

14. GOVERNING LAW: The laws of the State of California shall govern this Agreement without reference to conflicts of law principles. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter covered. No modification shall be effective unless in writing and signed by both parties.

15. PRIVACY POLICY: ITS will not offer your customer information to third parties. We keep your Client records confidential. Any information we collect is for our own internal purposes. We stress the importance of your privacy with our employees. We limit access to your information to those who need it to do their jobs, and we maintain careful security procedures, to help guard against unauthorized access to your corporate information. Information we are referring to includes: your business name, customer name, address, email address, telephone number, information from our web site usage, either online or on applications and other forms; information about your transactions with us, our affiliates and others such as your account number, and payment history. This explanation of our privacy policies replaces any previous statement of our policies. You must be 18 years of age to order product and services from ITS. If there are any changes we will notify our clients as required by law.