Terms of service

OVERVIEW

This website is operated by IT Support MSP LLC. Throughout the site, the terms “We”, “Us” and “Our” refer to IT Support MSP LLC.

IT Support MSP LLC offers this website, including all information, tools and Services available from this site to you, the User, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

For purposes of this Terms of Service, "Affiliate" means any entity that directly or indirectly, through one or more entities, controls and/or owns or is controlled and/or owned by User or by Us, or is under common control and/or ownership with User or Us.

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and Services to you.

SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse Service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the Service is provided, without express written permission by us.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete, or more timely sources of information. Any reliance on the material on this site is at your own risk.

This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 - PRODUCTS OR SERVICES
Certain products or Services may be available exclusively online through the website. These products or Services may have limited quantities and are subject to return or exchange only according to our Refund Policy . In addition certain products or Services are only available by recurring monthly subscriptions according to our Subscription Policy .

We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or Services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or Service made on this site is void where prohibited.

We do not warrant that the quality of any products, Services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete, and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more details, please review our Refund Policy .

SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new Services and/or features through the website (including the release of new tools and resources). Such new features and/or Services shall also be subject to these Terms of Service.

We do provide an optional data backup Service known as “PCC/FileServer Back-In-Time Daily Backup” on a subscription basis. If User does NOT subscribe to this service, then the User acknowledges and agrees to the following:

Having declined Our optional data backup service, User acknowledges that We have no obligation to backup User data and We have no obligation to recover User data under any circumstances.  User hereby agrees to waive and release all claims, suits, encumbrances, injunctions, damages, judgments, liabilities (the “Release” or the “Releases”) against Us and any Affiliate of Ours, Our employees, owners, members, shareholders, agents, assigns, independent contractors, trade partners, channel partners, vendors, resellers, wholesalers, trade group or coop members, successors in interest, third party service providers, or any other party acting on Our behalf for the direct or indirect benefit of User (collectively Us, and “Our Release Parties”) and User exculpates, covenants not to sue, holds harmless, indemnify and defend Us and the Our Release Parties.

User further covenants to Release and not to sue, release, hold harmless, defend and indemnify Our Release Parties in relation to all claims, damages, suits, demands, trials, tribunals, dispute resolution proceedings  and causes of action arising from any consequences resulting from failure (including but not limited to) inadvertence, mistake, negligence, gross negligence or willful misconduct of User and Affiliates of User, owners, managers, employees, agents, contractors, members, shareholders, officers, directors, professionals, experts, vendors, successors and assigns) of User to maintain an adequate Backup system for any of User’s data (including, but not limited to), personally identifiable information, medical data and personal health information),  including data for User’s employees, User’s customers, employees of User’s customers and any data subject to User’s obligations under any applicable Federal, state, local law or regulation or any other contractual obligation User may have with respect to the maintenance, security, confidentiality and privacy of any data, including (but not limited to) third party data, for which User has a duty, or other legal, administrative, regulatory or contractual obligation.

In addition, We provide an optional Cybersecurity Enhancement Service known as “SIEM 24X7 Endpoint Security Monitoring and Remediation” on a subscription basis. If User does NOT subscribe to this service, then the User acknowledges and agrees to the following:

Having declined the Cybersecurity Enhancement Service, User acknowledges that We will not be providing enhanced cybersecurity protections which may increase the risk of cyberattacks against User’s network security and any damages which may result therefrom.  User hereby Releases and waives all claims against Us and Our Release Parties.

User further covenants to Release and not to sue, release, hold harmless, defend and indemnify Our Release Parties in relation to all claims, damages, suits, demands, trials, tribunals, dispute resolution proceedings  and causes of action arising from any consequences resulting from failure (including (but not limited to) inadvertence, mistake, negligence, gross negligence or willful misconduct of User and Affiliates of User, owners, managers, employees, agents, contractors, members, shareholders, officers, directors, professionals, experts, vendors, successors and assigns) of User to accept cybersecurity enhancements in order to lower the risk of cyberattacks and all damages resulting therefrom.

SECTION 8 - THIRD-PARTY LINKS
Certain content, products, and Services available via our Service may include materials from third parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or Services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, Services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us, you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

SECTION 10 - PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy, which can be viewed here: Privacy Policy

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 12 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 13 - PROPRIETARY RIGHTS AND CONFIDENTIALITY
We, any Affiliates of ours and/or their licensors shall retain all rights, title, and interest in any and all intellectual property, informational property, industrial property and any copies thereof.  We neither grant nor otherwise transfer any rights of ownership in the Product, licenses, or intellectual property to User. User acknowledges that the Product and intellectual property may be protected by applicable copyright, confidentiality, non-disclosure, and trade secrets laws, as well as and other forms of intellectual property, informational property, and industrial property protections.

User may only use and disclose our Products in accordance with this Terms of Service.  We reserve all rights in and to our Products expressly granted in this Terms of Service.  User may not disassemble or reverse-engineer any software Product or decompile or otherwise attempt to derive any software Product's source code from executable code, except to the extent expressly permitted by applicable law, or provide a third party with the results of any functional evaluation of, benchmarking of, or performance tests on, the Products without our prior written approval. User shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Product, programming, documentation, reports, or any other Product Services available to any third party. Except as expressly authorized in these Terms of Service, User may not (a) distribute the Product to any third party (whether by rental, lease, license, assignment, sublicense, or other transfer), or (b) operate the Product in an outsourcing or service provider business to process the data of third parties.  Additional usage restrictions may apply to certain third-party files or programs embedded in the Product - applicable installation instructions or release notes will contain the relevant details.

Subject to these Terms of Service and any applicable Orders thereunder, We grant User a non-exclusive, non-transferable license to use all programming, documentation, reports, and any other Product provided by Us pursuant to this Terms of Service solely for its own internal use.

Any software Product provided to User by Us as a wholesaler, channel partner or reseller for a third party, which is licensed to User under a separate software license agreement with such third party (such agreement, an “SLA”), will continue to be governed by the SLA.  The fulfillment of the obligations under this document will not relieve or alter the obligations or responsibilities of either party (or of any third party) in regard to the software product licensed under the SLA.

We own all right, title, and interest in the Product, including all intellectual property rights embodied therein. Nothing in this Terms of Service is intended to (or will have the effect of) vesting in User, or transferring to User, Our rights, our Affiliates, suppliers’ or licensor’s software, methods, know-how or other intellectual property, regardless of whether such intellectual property was created, used, or first reduced to practice or tangible form.

This Section sets out the terms for identification of information which is considered confidential and proprietary by Us, and restrictions against use and disclosure of such Confidential Information by the User.

(a) Definition. The term “Confidential Information” means all proprietary or confidential information that is disclosed to the User by Us or our Affiliates, suppliers, and licensors, and includes, among other things (1) any and all information relating to Products provided by Us, any User-related information and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials and (2) the terms of this Terms of Service.

(b) Disclosure Restrictions. User may not disclose Confidential Information of Ours to any third party without the prior written consent by Us.

(c) Proprietary Legends. User may not remove, obscure, or alter any proprietary legend relating to Our rights on or from any form of Confidential Information of Ours without the prior written consent of us, except as expressly authorized in an Order.

(d) We will make reasonable disclosures of User’s confidential information solely in pursuit of performance of its requirements in this Terms of Service.

SECTION 14 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent, or warrant that your use of Our Service will be uninterrupted, timely, secure, or error-free.

We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.

We MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO our SERVICES OR GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

FOR THE AVOIDANCE OF DOUBT, We MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

You agree that from time to time We may remove the Service for indefinite periods of time or cancel the Service at any time, without notice to you.

You expressly agree that your use of, or inability to use, the Service is at your sole risk. The Service and all products and Services delivered to you through the Service are (except as expressly stated by Us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

In no case shall IT Support MSP LLC, our directors, officers, employees, Affiliates, agents, contractors, interns, suppliers, Service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Service or any products procured using the Service, or for any other claim related in any way to your use of the Service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Service or any content (or product) posted, transmitted, or otherwise made available via the Service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Our liability shall be limited to the maximum extent permitted by law.

The foregoing limitation of warranties shall in no way limit or impair any warranties related to hardware or software from the supplier/developer/manufacturer of such hardware or software to the extent such warranties are transferred to User.

SECTION 15 – INDEMNIFICATION AND ALLOCATION OF RISK
You agree to indemnify, defend and hold harmless IT Support MSP LLC and our parent, subsidiaries, Affiliates, partners, officers, directors, agents, contractors, licensors, Service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

CONSEQUENTIAL DAMAGES. WE ARE NOT LIABLE TO USER, ITS AFFILIATES, THIRD PARTY VENDORS, OR ITS LICENSORS, FOR CONSEQUENTIAL DAMAGES, INCLUDING SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, ARISING OUT OF (OR RELATING TO) THIS TERMS OF SERVICE OR THE PRODUCT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF THE NEGLIGENCE OF EITHER PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. AS USED IN THIS AGREEMENT, “CONSEQUENTIAL DAMAGES” INCLUDES, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE, INTERRUPTION OF BUSINESS OR LOSS OF USE OF CLIENT DATA.

THIRD PARTY SERVICES. IN ADDITION TO AND WITHOUT LIMITING CONSEQUENTIAL DAMAGES, WE, OUR MEMBERS, EMPLOYEES, AGENTS, DIRECTORS, AND REPRESENTATIVES, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS AND SERVICES PROVIDED BY THIRD PARTY VENDORS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.   FURTHER, WE, OUR MEMBERS, EMPLOYEES, AGENTS, DIRECTORS, AND REPRESENTATIVES ARE NOT LIABLE FOR ANY LOSSES, INJURIES, OR DAMAGE OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR OTHERWISE RELATED TO, IN CONNECTION WITH OR ARISING FROM THIRD PARTY SERVER DATA STORAGE, DUPLICATION, ARCHIVING, FILTERING, FIREWALL, THIRD PARTY CO-LOCATION, EQUIPMENT, SOFTWARE, OR HARDWARE, OR OTHER SERVICE, SEEN OR UNFORESEEN, (COLLECTIVELY, “CLOUD SERVICES”) AND WHETHER OR NOT CAUSED BY INTENTIONAL OR UNLAWFUL ACTIVITY INCLUDING HACKING, RANSOM, VIRUS OR SECURITY BREACHES, OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY VENDOR, CONTRACTOR, CHANNEL PARTNER, LICENSOR, LICENSEE, OR ANY OTHER PARTY.

LIMITATION OF LIABILITY. OUR ENTIRE LIABILITY FOR ANY CLAIM, SERIES OF CLAIMS, OR FOR ANY DAMAGES RELATED IN ANY WAY TO ANY PRODUCT OR RIGHTS OF OURS, AS WELL AS THOSE ARISING UNDER OR RELATED TO THIS TERMS OF SERVICE, INCLUDING OUR PERFORMANCE OF THE SERVICES, OR OUR PROVIDING OF ANY HARDWARE OR SOFTWARE UNDER ANY THEORY, WHETHER STRICT LIABILITY, NEGLIGENCE, ACTIVE OR OTHERWISE, IS LIMITED TO USER’S AND ANY THIRD PARTIES’ DIRECT DAMAGES  AND IS FURTHER LIMITED TO THE COVERAGE ACTUALLY AFFORDED BY OUR INSURANCE POLICIES.  ALTERNATIVELY, IF INSURANCE COVERAGE IS NOT AVAILABLE UNDER ANY OF OUR POLICIES, TOTAL LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT exceed THE LESSER OF THE AMOUNT USER PAID TO US UNDER THIS AGREEMENT IN THE ONE MONTH IMMEDIATELY PRECEDING THE FACTS OR CIRCUMSTANCES GIVING RISE TO THE LAST CLAIM OF DAMAGE OR $5,000.00.  THIS PROVISION IS INDEPENDENT OF ANY OTHER LIMITATION OF LIABILITY AND REFLECTS A SEPARATE ALLOCATION OF RISK FROM PROVISIONS SPECIFYING OR LIMITING A PARTY’S REMEDIES.

Indemnification and Duties.

1. If User, its Affiliates, or any of its respective employees, agents, vendors, or suppliers, is faced with a legal claim by a third party arising out of Our actual or alleged gross negligence, negligence, willful misconduct, violation of law, or failure to meet the security obligations required by the Terms of Service, or a legal claim alleging patent, trade secret, or copyright infringement, then User must forward notice of the legal claim to Us within three (3) business days of receipt of the claim.
   
   
2. If We, our Affiliates, or any of our respective employees, agents, vendors, channel partners, contractors, licensee, licensor, or suppliers is faced with a legal claim by a third party arising out of User’s actual or alleged gross negligence, negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, and/or violation of User’s agreement with its Clients or end users, then User shall at all times indemnify and hold Us harmless, our successors and assigns and any of our officers, directors, employees representatives, and/or agents, and their heirs, executors, administrators, successors and assigns or each of them against and from any and all claims, damages, liabilities, costs and expenses, including the cost of defending the claim (including reasonable attorney’s fees) and any damages award, fine or other amount that is imposed on Us as a result of the claim. User’s obligations under this subsection include claims arising out of the acts or omissions of User’s employees, any other person to whom User has given access to the Product, and any person who gains access to the Product as a result of User’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by User, including unlawful acts of data intruders.
   
   
3. User shall pay attorneys’ fees and other expenses that We incur in connection with any dispute between persons having a conflicting claim to control User’s account with Us, or any claim by User’s clients or end users arising from an actual or alleged breach of User’s obligations to them.
   
   
4. If User receives notice of a claim that is or may be covered by this Indemnification and Duties, the notice must be promptly forwarded to Us. User will not settle any claim that encumbers Us with any liability, specific performance, injunctive relief that acknowledges only wrongdoing by Us, breach of the Terms of Service by Us, violation of regulation or law by Us, or substantially similar burden without written approval and consent from Us.

Injunctive Relief.  User acknowledges that a violation of Our confidentiality as described in Section 13 of this Terms of Service will cause Our immediate and irreparable harm.  In the event of a breach of Section 13 by User or any third party, User agrees that We may seek, in addition to any and all other remedies available at law, an injunction, specific performance, or other appropriate relief, including liquidated damages, loss or profits, enterprise value, business disruption, or harm to reputation.

Additional Protections.

1. WE shall not be liable for any unlawful or unauthorized access, damage, loss or intrusion to USER Data, nor shall WE be liable for any unlawful or unauthorized access, damage, loss or intrusion to any data of USER’s Client, any data of any entity or person serviced by USER, and/or any entity or person to whom USER otherwise owes a duty of care, whether such duty of care arises pursuant to contract or as a matter of applicable law. USER SHALL BE SOLELY RESPONSIBLE FOR DETERMINING WHAT APPLICABLE COMPLIANCE STANDARDS, IF ANY, IT MUST OR SHOULD ADHERE TO OR MAINTAIN FOR ITSELF, ITS CLIENTS, USERS OR OTHER THIRD PARTIES CONCERNING DATA COMPLIANCE, STORAGE, BACKUP, RETENTION AND RESTORATION FOR ANYONE TO WHOM USER IS RESPONSIBLE AND/OR OTHERWISE OWES A DUTY OF CARE CONCERNING SUCH DATA COMPLIANCE, STORAGE, BACKUP, RETENTION AND RESTORATION.
   
   
2. User fully and forever Releases and discharges Us and all of our respective Affiliates, directors, officers, shareholders, employees, agents, and insurers, from any and all injuries, losses, damages, claims (including negligence claims), demands, lawsuits, expenses, and any other liability of any kind, of or to User, its property, User’s customers, employees, suppliers or any other person, directly or indirectly arising out of or in connection with services provided by third party vendors.
   
   Further, User will defend, indemnify, hold harmless, and reimburse Us from and for all damages, losses, costs, or expenses (including legal fees) incurred by Us or paid by them to any person (including User or its respective insurers) in respect of any liability resulting from services provided by third party vendors. In addition, User will not initiate any claim, lawsuit, court action, or other legal proceeding or demand against Us, nor join or assist in the prosecution of any claim for money or other damages which anyone may have, on account of injuries, losses, or damages sustained by User, its customers, employees or suppliers, other parties, or any such person’s property in connection with any services provided by third party vendors.
   
   
3. We shall not be liable for any inability of Us, User or User's Clients to access, maintain, recover or restore any of User's data, including (but not limited to) any inability as a result of force majeure, acts of God and nature, war, terrorism, bankruptcy, insolvency or shutdown of any business of User, User's Client, User's vendors, or Our vendor or vendors, channel partners, licensees or licensors, VOIP service providers, or agents, except as otherwise required by law. For purposes of this section, "vendor" or "vendors" includes, but is not limited to, vendors storing User's Data or User's Client data in the “cloud”, such as offsite storage facilities.
   
   
4. In the event of the insolvency, liquidation, or restructuring of the User, User agrees for any continuation of Product that We may provide in its sole discretion, that We shall be considered, for purposes of applicable state and federal law, including federal bankruptcy law, as a “critical vendor,” and User shall be paid immediately for any outstanding pre-filing Invoices that are outstanding. Additionally, in the event of the insolvency, liquidation, or restructuring of the User, User shall waive any and all rights to bring any avoidance action, actions for Clawback of amounts paid/transfers made, actions for preferential transfer/treatment, and actions for fraudulent transfer, whether such actions arise under state or federal law, including (but not limited to) federal bankruptcy law.
   
   
5. Each and every payment under this Terms of Service shall be considered (and is hereby acknowledged by the parties as) a contemporaneous exchange for new value.

 

SECTION 16 - ALTERNATIVE DISPUTE RESOLUTION.
THE PARTIES SHALL RESOLVE ANY DISPUTE, CONTROVERSY, SUIT, OR CLAIM ARISING OUT OF OR RELATING TO THE PRODUCT AND/OR THIS TERMS OF SERVICE, OR THE BREACH, TERMINATION, OR INVALIDITY HEREOF (EACH, A "DISPUTE"), UNDER THE PROVISIONS OF THIS SECTION. THE PROCEDURES SET FORTH IN THIS SECTION AND SECTION 17 (SEVERABILITY) SHALL BE THE EXCLUSIVE MECHANISM FOR RESOLVING ANY DISPUTE THAT MAY ARISE FROM TIME TO TIME.  DURING THIS DISPUTE RESOLUTION PROCESS, THE PARTIES AGREE TO TOLL ANY APPLICABLE STATUTES OF LIMITATIONS OR SIMILAR DEFENSES, TO PROVIDE FOR THE RETENTION OF ANY LEGAL OR EQUITABLE ACTIONS OR DEFENSES THAT THE PARTIES MAY HAVE, AND TO PROVIDE THAT NO LEGAL OR EQUITABLE ACTION MAY BE INITIATED BY OR ON BEHALF OF THE PARTIES AGAINST ONE ANOTHER DURING THE MEDIATION PROCESS.  THE PARTIES SHALL FIRST ATTEMPT IN GOOD FAITH TO RESOLVE ANY DISPUTE BY NEGOTIATION AND CONSULTATION BETWEEN THEMSELVES. THE PARTIES MAY, AT ANY TIME AFTER AN ATTEMPT IS MADE TO RESOLVE THE DISPUTE BY NEGOTIATION, SUBMIT THE DISPUTE TO ANY MUTUALLY AGREED TO PRIVATE MEDIATION SERVICE FOR MEDIATION BY PROVIDING TO THE PRIVATE MEDIATION SERVICE A JOINT, WRITTEN REQUEST FOR MEDIATION, SETTING FORTH THE SUBJECT OF THE DISPUTE AND THE RELIEF REQUESTED. THE PARTIES SHALL COOPERATE WITH ONE ANOTHER IN SELECTING A PRIVATE MEDIATION SERVICE AND SHALL COOPERATE WITH THE MEDIATION SERVICE AND WITH ONE ANOTHER IN SELECTING A NEUTRAL MEDIATOR AND IN SCHEDULING THE MEDIATION PROCEEDINGS. THE PARTIES COVENANT THAT THEY WILL USE COMMERCIALLY REASONABLE EFFORTS IN PARTICIPATING IN THE MEDIATION. THE PARTIES AGREE THAT THE MEDIATOR’S FEES AND EXPENSES AND THE COSTS INCIDENTAL TO THE MEDIATION WILL BE SHARED EQUALLY BETWEEN THE PARTIES.  IF THE MATTER IS NOT RESOLVED WITHIN SIXTY DAYS AFTER INITIATION OF MEDIATION THROUGH A PRIVATE MEDIATION SERVICE, EITHER PARTY MAY DEMAND CERTIFIED MEDIATION BY A MEDIATOR ON A COURT APPROVED PANEL OR AS OTHERWISE MUTUALLY SELECTED BY THE PARTIES.  THE PARTIES AGREE TO USE THE SAME COMMERCIALLY REASONABLE EFFORTS IN THE SECOND MEDIATION STEP WITH THE COURT-CERTIFIED MEDIATOR. ALL MEDIATION SHALL BE BY VIDEO CONFERENCES, UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING.  THE MEDIATION SHALL BE CONDUCTED IN THE STATE OF DELAWARE.  IF THE PARTIES CANNOT RESOLVE ANY DISPUTE FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, THE FAILURE OF EITHER PARTY TO AGREE TO ENTER INTO MEDIATION OR AGREE TO ANY SETTLEMENT PROPOSED BY THE MEDIATOR, EITHER PARTY MAY DEMAND ARBITRATION.

SECTION 17 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

Severability, No Recovery of Fees.  Should any provision of this Terms of Service be invalid, or unenforceable, the remainder of the provisions will remain in effect.  In the event of a dispute, each party shall bear its own respective costs, expenses, and attorneys' fees.

Notices. Unless otherwise provided, notices to the Parties will be in writing to the address indicated above and deemed effective when received by U.S. mail by first class, express mail, or by electronic means.

No Waivers.  Failure of a party to require performance by the other party under this Terms of Service will not affect the right of such party to require performance in the future.  A waiver by a party of any breach of any term of this Terms of Service will not be construed as a waiver of any continuing or succeeding breach.

Force Majeure.  Any delay or failure of Us to perform any obligation under this Terms of Service caused by federal, state or municipal government orders restricting mobility, setting curfews or requiring shelter in place, labor disputes, acts of terrorism, cyber-espionage or hacking, storms or natural disasters, emergency, diseases, epidemics, pandemics, quarantines, riots, protests, electro-magnetic pulses, biohazards, or other causes beyond the reasonable control of Us, will not be deemed a breach of this Terms of Service (the “Force Majeure Event”).  In the event of power failure or internet, satellite  or loss of User or utilities due to a Force Majeure or any other event beyond Our control of either Us, User or a third party vendor or of agent of either Us or User, We shall not be liable for the loss of network connectivity, internet connectivity or primary internet service that results in the User’s inability to access data, third party services, VOIP, or satellite services. Further, We are not required to seek a writ of habeas corpus in the event of a government order restricting Our ability to perform.

Referencing.  User agrees that We and any Affiliates of Ours may refer to User as a User of Ours, both internally and in externally published media, to include (but not be limited to) use of User name, logo, and the fact of the relationship in promotional materials, although User may cancel the above-described referencing rights on thirty (30) days-notice to Us. User also agrees to instruct appropriate personnel within its organization that User has agreed to receive and participate in calls, from time to time, with potential Users of Ours who wish to evaluate the technical specifications of Product.

GOVERNING FORUM AND LAW. THIS TERMS OF SERVICE IS GOVERNED BY DELAWARE LAW, EXCEPT AS TO CONFLICTS OF LAW, WHICH IN ALL CASES SHALL CAUSE TO BE SELECTED THE LAWS OF THE STATE OF DELAWARE. ALL DISPUTES UNDER THIS TERMS OF SERVICE SHALL BE RESOLVED IN ACCORDANCE WITH SECTION 16 (ALTERNATIVE DISPUTE RESOLUTION). SHOULD ARBITRATION BE DEMANDED, THE PARTIES AGREE THAT ARBITRATION WILL OCCUR IN THE STATE OF DELAWARE AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.  IN ANY DISPUTE OR SUIT BEFORE ANY TRIBUNAL, LIMITATION OF LIABILITY PROVISIONS HEREIN ARE CONSIDERED MATERIAL CONSIDERATION FOR THIS AGREEMENT.  AS SUCH, NO AWARDS MAY BE SOUGHT IN EXCESS OF THE LIMITATION OF LIABILITY PROVISIONS.  IN THE EVENT OF A DISPUTE ARISING OUT OF THIS TERMS OF SERVICE, EACH PARTY SHALL OBSERVE THE “AMERICAN RULE” AND BEAR ITS OWN RESPECTIVE COSTS, EXPENSES, EXPERTS, AND ATTORNEYS' FEES, EXCEPT WITH RESPECT TO Indemnification and Duties (b), THE PARTIES AGREE THAT NEITHER  SHALL SEEK LEGAL FEES UNDER ANY CIRCUMSTANCES.

Litigation Holds.  Any and all discovery, (including electronic data) that User determines to voluntarily produce or is required or compelled to produce pursuant to process or court order in suits, claims, proceedings or disputes with third parties shall be at User’s sole expense and in a manner in form and substance compliant with applicable law, process or court order.   Our assistance with such discovery and the provision of products and services in connection therewith, shall be subject to a separate services agreement “discovery services agreement” mutually agreeable to Us and User. In no event shall We be required under any such discovery services agreement to advance costs, fees or expenses - said costs, fees, and expenses to be disbursed by User in advance unless otherwise agreed to in writing by the Parties.

Non-disparagement.  Neither Party shall, directly or indirectly, make or authorize the making of any statement that disparages or creates any material negative inference with respect to the other Party's respective officers, directors, Affiliates, personnel, products or related companies, by words, actions or other communications, or by any omission to speak, act or otherwise communicate.

Change of Control.  In the event of an acquisition or other change in control of User, this Terms of Service, all statements of work, and orders either attached hereto as an exhibit or incorporated herein by reference, shall remain in full force and effect. “Change in Control" means, for any person, either (a) any sale, exchange, transfer, conveyance or termination of any equity or ownership interests in User, or any corporate, limited liability company or partnership reorganization, restructure, merger, acquisition, transfer of assets, consolidation or adjustment with respect to User, in each case if the persons currently in control of User would no longer have such control after such event or (b) any other change in the direct or indirect control of, or the ability or right to control, a majority of the voting shares of any class of securities or ownership rights in User or in the right or the power to control the election of the board of directors or other managing body of User, in each case if the persons currently in control of User would no longer have such control after such event.

Litigation.  In the event of litigation or threatened litigation between User and a third party, the Scope of Terms of Service shall not include assistance by the Us to preserve documents, including electronically stored information (“ESI”), as may be requested by counsel or as ordered by a court of competent jurisdiction.

SECTION 18 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

User’s Use And Access To User Data and Services Post-Termination:
User shall, for continued use and access of its data post-termination and for Services as necessary, continue to pay Us monthly on their regular subscription payment day following the termination of this Terms of Service, a monthly transition fee (the “Post-Termination Transition Fee”) at prices no worse to User than those for comparable Services provided to User by Us prior to Termination, or if comparable services were not provided to User by Us prior to Termination or expiration, then at prices no worse than the fair market value for such services in advance on the first day of each month for a period not to exceed three (3) months or as otherwise agreed (the “Post-Termination Transition  Period”).  Assuming actual timely payment by User in advance, We will reasonably make available to User its data and perform such Services as necessary during the Post-Termination Transition Period.   If the data is or includes protected health information, the storage, use, duplication, return or destruction of such data shall be governed by any applicable BAA (Business Associate Agreement) entered into and executed by the Parties and applicable law.

Liability Relating to Client Data Post-Termination:
Subject to the Limitation of Liabilities set forth in Section 14 (LIMITATION OF LIABILITY),  User acknowledges that neither We nor Our Release Parties have any liability to User for breach, harm, ransom, storage, hacking, modification, duplication, destruction or loss of any data (including, but not limited to, User data , data of any employees of User, data of User’s customers, or any data of any employees of User’s customer’s, or data of any other third parties) post-termination of this Terms of Service and/or any Order (including the Post-Termination Transition Period), regardless of where or how the data is maintained, including off-site maintenance by third-party storage vendors, and regardless of whether We or User was or was not in direct privity or contract with such third-party vendor.  User hereby Releases, waives all claims against Us or any of Our Release Parties, covenants not to sue Us, holds Us harmless, and agrees to indemnify and defend Us from and in relation to any and all claims, damages, suits, demands, trials, tribunals, dispute resolution proceedings and causes of action arising from any consequences resulting from data breaches of User, User’s employees, User’s customers, employees of User’s customers, or any third parties post-termination (including during the Post-Termination Transition Period).

SECTION 19 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and governs your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 20 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of United States.

SECTION 21 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.

We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 22 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at Sales@itsupportmsp.com .

Our contact information is posted below:
IT Support MSP LLC
Sales@itsupportmsp.com
15615 Alton Parkway STE 450
949-431-2404
www.itsupportmsp.com

Last updated: 10/05/2022