Assessment Services Agreement

​Thank you for trusting Enstep Technology Solutions (“Enstep,” “we,” “us,” or “our”) to provide you with professional information technology services. This Master Services Agreement (this “Agreement”) governs our business relationship with you, so please read this document carefully and keep a copy for your records.

Scope

Context:
In this Agreement, “Client,” “you,” or “your” will mean the entity who has accepted a quote, proposal, service order, statement of work, or similar document (electronic or otherwise) from us (“Quote”).

Applicability:
The scope of our services will be as described in a Quote (collectively, “Services”). All other services, projects, and related matters are out-of-scope (collectively, “Out of Scope Services”) and will not be provided to you unless we expressly agree to do so.

Conflicts:
The provisions of a Quote govern over conflicting or materially different terms contained in this Agreement.

Third-Party Providers/Services:
Some services may be provided to you by third party providers, who are often referred to in the industry as “upstream providers.” (In this Agreement, we call upstream providers “Third-Party Providers” and the services that Third-Party Providers provide are called “Third-Party Services”). As your managed information technology provider, we will select the Third-Party Providers that provide services appropriate for your managed information technology environment (the “Environment”) and facilitate the provision of those Third-Party Services to you. We are resellers and/or facilitators of the Third-Party Services and do not provide those services to you directly. For this reason, we are not and cannot be responsible or liable for any defect, act, omission, or failure of any Third Party Service or any failure of any Third-Party Provider. Third-Party Services are provided on an “as is” basis only, without any warranty of any kind from us, including (but not limited to) any implied warranty of fitness for a particular purpose or merchantability.

Implementation

Advice; Instructions:
We may offer you specific advice and directions related to the Services (“Advice”). We strongly suggest that you promptly follow our Advice which, depending on the situation, may require you to make additional purchases or investments in your managed IT environment (“Environment”) at your sole cost. We are not responsible for any problems or issues, including but not limited to downtime or security-related issues, caused by or related to your failure to follow our Advice promptly.

Authorized Contact(s):
We will be entitled to rely on any directions or consent provided by your personnel or representatives who you designate to provide such directions or consent (“Authorized Contacts”).

Delays:
We will not be responsible or liable under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions, or by a third-party’s acts or omissions.

Limited Warranties; Limitations Of Liability

• This section is a material and bargained-for part of this Agreement, and you acknowledge that Enstep would not provide the Services without these limitations. Except as expressly stated in this Agreement, in no event will either party be liable for any indirect, special, exemplary, consequential, incidental, or punitive damages, including lost revenue, lost profits, lost savings, or other contingent or event-based economic losses, arising out of or relating to this Agreement, any Quote, or the Services, even if advised of the possibility of such damages.
• Except for the foregoing exclusions, each party’s total aggregate liability for all claims arising out of or relating to this Agreement, any Quote, or the Services, whether in contract, tort, negligence, indemnification, or otherwise, will be limited to the greater of: (i) the fees paid by you to Enstep, excluding hard costs such as licenses, hardware, and third-party charges, for the specific Service giving rise to the claim during the six (6) months before the claim accrued; (ii) $10,000; or (iii) the amounts actually paid under the responsible party’s applicable insurance policy. The selected remedy will be the aggrieved party’s sole financial remedy.
• These limitations will apply even if any remedy fails of its essential purpose, but will not apply to the extent prohibited by law or to claims caused by a party’s gross negligence or willful or intentional misconduct.

Term; Termination

• This Agreement applies to all Services and is effective as of the date on which we provide or facilitate a Service to you or on the date on which you accept a Quote, whichever is earlier (“Effective Date”). Upon the termination of this Agreement or Services under a Quote, all Services will immediately and permanently cease; however, the termination of this Agreement or Services under a Quote shall not change or eliminate any fees that accrued and/or were payable to us prior to the date of termination, all of which shall be paid by you. Please note, neither this Agreement nor the Services under a Quote shall be terminated by either party without cause if Services are in progress under a Quote.
• Upon termination of this Agreement or applicable Quote for any reason, you agree to return to us all Enstep-supplied equipment (such as equipment provided under a hardware-as-a-service paradigm). If any of the equipment is missing, broken or damaged (normal wear and tear excepted) or any Enstep-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of all missing or damaged items.
• Certain services may require the installation of software agents in the Environment (“Software Agents”). Unless we expressly direct you to do so, you will not remove or disable, or attempt to remove or disable, any Software Agents.
• If you request our assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Enstep providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. Unless otherwise expressly stated in a Quote or prohibited by applicable law, we will have no obligation to store or maintain any Client data in our possession or control following the termination of this Agreement or the applicable Services.

Confidentiality

Confidential Information means all non-public information disclosed by one party (“Discloser”) to the other (“Recipient”), including customer data, customer lists, internal documents, communications, proprietary reports, methodologies, trade secrets, and related information, but excluding information that becomes public through no fault of the Recipient, is independently developed by the Recipient, or is lawfully received from a third party without confidentiality restrictions. The Recipient will protect Confidential Information using at least commercially reasonable care and will not use or disclose it except as authorized in writing, as necessary to perform under this Agreement, or as legally required. If disclosure is legally compelled, the Recipient will, unless prohibited by law, promptly notify the Discloser and disclose only the portion legally required. If we are required to expend resources responding to legal process involving your information, you agree to pay our then-current hourly rates and any non-mitigatable hard costs. These obligations continue during the term of each Quote and for seven (7) years thereafter; trade secrets remain protected for so long as they qualify as trade secrets under applicable law. This paragraph survives termination of the Agreement.

Miscellaneous

End User Agreements: Portions of the Services may require you to accept the terms of one or more third party end user license agreements (EULAs), third party customer agreements, and/or third party subscription agreements (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required for you to receive any Services, then you hereby grant us permission to accept the applicable agreement(s) on your behalf. You agree to be bound by the terms of all applicable End User Agreements.

Assignment: Neither this Agreement nor any Quote may be assigned or transferred by a party without the prior written consent of the other party except, however, a party may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of its business or any other transaction in which ownership of more than fifty percent (50%) of its voting securities are transferred, provided that the assignee expressly assumes, in writing, the assignor’s obligations hereunder.

No Poaching: Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly hire or retain the services of any of the other party’s employees with whom the Restricted Party worked (each, a “Restricted Employee”), or solicit, induce, or encourage a Restricted Employee to discontinue or reduce the scope of the Restricted Employee’s business relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, if the Restricted Party does not promptly cure the situation after receiving notice of the breach from the other party, then the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current Quote immediately For Cause.

Amendment: This Agreement and any Quote may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that is expressly accepted by both you and us.

Force Majeure: Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control.

Governing Law; Venue: This Agreement will be governed by, and construed according to, the laws of the state of Texas. You hereby irrevocably consent to the exclusive jurisdiction and venue of Harris County, Texas, for all claims and causes of action with us that arise from or relate to this Agreement.

Independent Contractor: Enstep is an independent contractor, and is not your employer, employee, partner, or affiliate.

Access Licensing: One or more of the Services may require us to purchase certain “per seat” or “per device” licenses (often called “Access Licenses”) from one or more Third-Party Providers. (Microsoft “New Commerce Experience” licenses as well as Cisco Meraki “per device” licenses are examples of Access Licenses.) With very limited exceptions, Access Licenses cannot be canceled once they are purchased and often cannot be transferred to any other customer. For that reason, you understand and agree that regardless of the reason for termination of the Services, fees for Access Licenses are non-mitigatable and you are required to pay for all applicable Access Licenses in full for the entire term of those licenses. Provided that you have paid for the Access Licenses in full, you will be permitted to use those licenses until they expire.

Counterparts: The parties intend to sign, accept and/or deliver any Quote, this Agreement, or any amendment in any number of counterparts, and each will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).