Total Network Care Terms and Conditions (“T&Cs”)
1.0 Effect of Termination.
Upon termination of this Agreement each party shall operate in "good faith" and shall return or destroy, at the
direction of the other party, all the other party's Confidential Business Information in its possession, which it has at
all time protected and treated as if it was its both own during the course of this Agreement and after any
termination of this Agreement. PCSI agrees to operate in "good faith" upon any termination and to not
damage, impair, or cause any damage or impairment to Clients technology network or equipment.
2.0 Projects Work & Items Outside of Scope of Agreement.
a. New or uncontemplated work or projects outside of the scope of the flat‐rate Agreement will be billed on a
per‐project basis. Services are based on actual time spent, regardless of the complexity of the problem or issues
addressed. Rates for projects will normally be billed as outlined in Section 5.1. Remote support and telephone is
charged at a minimum of 15 minutes.
b. Client will not be charged for appointments that are canceled in writing (letter, fax or email) by Client with 24
hours or more advance notice. Client will be charged for and agrees to pay for any scheduled hours for
cancellations with less than 24 hours notice.
c. Client is responsible for placing any written time limits – if necessary – before services are provided by
PCSI and cannot be retroactive.
d. Lab work performed by PCSI in our lab is not covered whether the equipment is brought into PCSI’s lab by the client or a PCSI representative under Bronze Plus and Silver plans.
e. Disaster Recovery Planning and or testing is not included
f. Any labor necessary to provide an audit of any type, whether being provided by PCSI or deemed necessary by the client from a staff member of the client or an outside auditor is not included.
g. Relocation support, planning and implementation of such are not included.
3.0 Indemnification and Limitations of Liability.
3.1 Infringement Claims.
Subject to the limitations set forth in Section 7.3, PCSI and Client each agree to indemnify, defend and hold
the other harmless against any action to the extent that such action is based upon a claim that the software (other
than, with respect to PCSI, third‐party software provided by PCSI) or Confidential Information
provided by the indemnitor, or any part thereof, infringes upon the intellectual property rights of any third party.
Any damage caused as a result of negligence on the part of PCSI or its employees are the sole
responsibility of PCSI.
3.2 Third Party Indemnification of PCSI.
Client acknowledges that by entering into and performing its obligations under this Agreement and each Order,
PCSI will not assume and should not be exposed to the business and operational risks associated with
Client’s business, and Client therefore agrees, subject to Section 7.3, to indemnify, defend and hold PCSI
harmless from any and all third party claims, actions, damages, liabilities, costs and expenses (including attorneys’
fees and expenses) arising out of or related to the conduct of Client’s business, including, without limitation, the
use by Client of the Services.
3.3 Procedures.
All indemnification obligations under this Section shall be subject to the following requirements: (a) the
indemnified party shall provide the indemnifying party with prompt written notice of any claim; (b) the
indemnified party shall permit the indemnifying party to assume and control the defense of any action upon the
indemnifying party’s written acknowledgment of the obligation to indemnify (unless, in the opinion of counsel of
the indemnified party, such assumption would result in a material conflict of interest); and (c) the indemnifying
party shall not enter into any settlement or compromise of any claim without the indemnified party’s prior written
consent, which shall not be unreasonably withheld. In addition, the indemnified party may, at its own expense,
participate in its defense of any claim. In the event that the indemnifying party assumes the defense of any such
claim, the indemnifying party shall have no liability for attorney’s fees and costs incurred by the indemnified party.
3.4 Liability.
PCSI DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY
FOR SERVICES NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE
PROVISION OF SERVICES AND SUPPORT. PCSI WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS
OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. CLIENT
AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES, PCSI IS NOT
LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY
CLIENT FOR THE PURCHASE OF SERVICES UNDER THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT PCSI
WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
4.0 Confidentiality.
4.1 Scope of Obligation.
In connection with the Services performed under this Agreement, the parties may have access to the other party’s
Confidential Information. “Confidential Information” means non‐public information that the disclosing party
designates as being confidential or which under the circumstances surrounding disclosure ought to be treated as
confidential and information received from others that the disclosing party is obligated to treat as confidential.
Confidential Information includes, without limitation, information relating to the disclosing party's software or
hardware products which may include source code, data files, documentation, specifications, databases, networks,
system design, passwords, encryption codes, file layouts, tool combinations and development methods, as well as,
information relating to the disclosing party's business or financial affairs, which may include business methods, marketing
strategies pricing, competitor information, product development strategies and methods, Client lists and financial results.
Confidential Information includes all tangible materials which contain Confidential Information whether written or
printed documents, computer disks or tapes whether user or machine readable. The parties agree to maintain the
confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party's
Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of
possession of such information. Each party agrees to maintain at least the same procedures regarding Confidential
Information that it maintains with respect to its own Confidential Information, but in no event less than a
reasonable standard of care. Without limiting the generality of the foregoing, neither party shall permit any of its
personnel to remove any proprietary or other legend or restrictive notice contained or included in any material
provided by the disclosing party and the receiving party shall not permit its personnel to reproduce or copy any
such material except as expressly authorized hereunder. A party’s Confidential Information may only be used by
the other party in order to fulfill its obligations under this Agreement.
4.2 Exceptions.
Confidential Information shall not include any information that: (a) is already known to the receiving party or its
affiliates, to be free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful
act of the receiving party or its affiliates; (c) is received by the receiving party from a third party without any
restriction on confidentiality; (d) is independently developed by the receiving party or its affiliates; (e) is disclosed
to third parties by the disclosing party without any obligation of confidentiality; or (f) is approved for release by
prior written authorization of the disclosing party.
4.3 Residual Rights.
Each party acknowledges that the other may, as a result of its receipt of or exposure to the other party’s
Confidential Information, increase or enhance the knowledge and experience retained in the unaided memories of
its directors, employees, agents or contractors. Notwithstanding anything to the contrary in this Agreement, each
party and its directors, employees, agents or contractors may use and disclose such knowledge and experience in
such party’s business, so long as such use or disclosure does not involve specific Confidential Information received
from the other party. The disclosing party will not have rights in such knowledge and experience acquired by the
recipient party, or rights in any business endeavors of the recipient party which may use such knowledge and
experience, or rights to compensation related to the recipient party’s use of such knowledge and experience.
4.4 Irreparable Harm.
Both parties acknowledge that any use or disclosure of the other party's Confidential Information in a manner
inconsistent with the provisions of this Agreement may cause the nondisclosing party irreparable damage for
which remedies other than injunctive relief may be inadequate, and both parties agree that the non‐disclosing
party may request injunctive or other equitable relief seeking to restrain such use or disclosure without the
necessity of proving actual harm or posting bond.
4.5 Survival of Obligation.
The terms and provisions of this Section 7.0 shall survive any expiration or termination of this Agreement.
5.0 Ownership of Work Product.
5.1 General.
All worldwide intellectual property rights associated with any ideas, concepts, techniques, processes or other work
product created by PCSI during the course of performing the Services shall belong exclusively to
PCSI, and Client shall have no right or interest therein. Unless this Agreement is terminated by
PCSI for Client’s material breach or failure to make payments to PCSI, PCSI hereby grants
to Client a perpetual, royalty‐free, nontransferable, nonexclusive license to use, solely for Client's internal business
purposes, the object code form of any application software programs or other work product created by
PCSI in performing the Services.
5.2 Development Tools.
Notwithstanding anything to the contrary in this Agreement, PCSI will retain all right, title and interest in
and to all software development tools, know‐how, methodologies, processes, technologies or algorithms used in
providing the Managed Services which are based on trade secrets or proprietary information of PCSI or are
otherwise owned or licensed by PCSI. Licenses will not be deemed to have been granted by either party to
any of its patents, trade secrets, trademarks or copyrights except as otherwise expressly provided in this
Agreement. Nothing in this Agreement will require PCSI or Client to violate the proprietary rights of any
third party in any software or otherwise.
5.3 Further Assurances.
PCSI and Client agree to execute and deliver such other instruments and documents as either party
reasonably requests to evidence or effect the transactions contemplated by this Section 8.0. The provisions of this
Section 8.0 will survive the expiration or termination of this Agreement.
6.0 Right To Engage In Other Activities.
Client acknowledges and agrees that nothing in this Agreement will impair PCSI’s right to perform services
or acquire, license, market, distribute, develop for itself or others or have others develop for PCSI similar
technology performing the same or similar functions as the technology and Services contemplated by this
Agreement.
7.0 Independent Contractor.
PCSI is an independent contractor. Neither PCSI nor Client are, or shall be deemed for any purpose
to be, employees or agents of the other and neither party shall have the power or authority to bind the other party
to any contract or obligation.
8.0 Arbitration.
Except for collection actions for payment of charges and for the right of either party to apply to a court of
competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to
preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this
Agreement or to its breach shall be settled by arbitration by a single arbitrator in accordance with Commercial
Arbitration Rules of the American Arbitration Association, pursuant to an arbitration held in Wisconsin, and
judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The
prevailing party shall be entitled to receive from the other party its attorney’s fees and costs incurred in
connection with any action, proceeding or arbitration hereunder. Notwithstanding the foregoing, either party may
assign this Agreement to an entity who acquires substantially all of the stock or assets of such party; provided that
consent will be required in the event that the non‐assigning party reasonably determines that the assignee will not have sufficient capital or assets to perform its obligations hereunder. All terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
9.0 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of IL, without
reference to conflict of laws principles. Client hereby irrevocably consents to the jurisdiction of the state courts of
the State of Illinois, Will County.
10.0 Service of Notice.
All notices, requests and communications under this Agreement shall be in writing. Notice shall be deemed to have
been given on the date of service if personally served or served by facsimile on the party to whom notice is to be
given. If notice is mailed, it shall be deemed to be given within seventy‐two (72) hours after mailing, if mailed to
the party to whom notice is to be given, by first‐class mail, registered or certified, postage prepaid, and addressed
to the party at the address set out above, or any other address that any party may designate by written notice
from time to time.
11.0 Entire Agreement and Modifications.
Each party acknowledges that it has read this Agreement and further agrees that the Agreement is the complete
and exclusive statement of the parties and supersedes and merges all prior proposals, understandings, and
agreements, oral or written, between the parties relating to the subject matter hereof, including without
limitation, the terms of any Client request for proposal. No modification, amendment, supplement to or waiver of
this Agreement shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
12.0 Severability.
In the event any one or more of the provisions of this Agreement or of any exhibit is held to be invalid or otherwise
unenforceable, the enforceability of the remaining provisions shall be unimpaired.
13.0 Force Majeure.
PCSI shall not be responsible for failure to perform under this Agreement when its failure results from any
of the following causes: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion,
earthquake or serious accident, strike, labor trouble or work interruption, loss of an IP address or other disruption
to Internet connection, or any cause beyond its reasonable control.
14.0 Exclusivity.
PCSI agrees that if any office, direct manager, supervisor, loan officer or other such employee were to
split/terminate or leave the employment of the Client, to form, structure or establish a similarly related entity
competitive with the Client, PCSI will not provide managed services to that office or entity or employee
during the term of this Agreement with Client. This does not exclude PCSI from working with other
contruction or general contractor related enterprises, only from forming new relationships with such enterprises
established by prior Client employees or where in the relationship is established from prior Client employees. If
Client cancels this Agreement prior to the expiration date of the term, PCSI will be free to contract with
any offices, or employee or competing entity formally affiliated with Client. After the expiration of the Agreement,
PCSI will be free to contract with any offices or employees formally affiliated with Client for managed
services, unless a new Agreement is established between Client which includes this limitation.
15.0 Security of Information and Indemnification.
PCSI agrees that any information that its employees come in contact with relative to personal financial and/or other
information of the clients of the customers during the course of their work with the computer system and network of theClient, will remain confidential. If any print‐outs have sensitive information of clients of the Client, those print‐outs will bedestroyed after any use related to this Agreement. PCSI further agrees to indemnify the Client for any breaches of
security, caused by the intentional, reckless or negligent acts of a PCSI employee, relative to personal financial and/or
other client information that is reveled or used by a third‐party if there are actual damages to the Client’s customer based on the dissemination of the confidential information.
16.0 Alterations to Services or Equipment.
If Client alters any Services or Equipment conducted by PCSI without the express written consent of PCSI, Client does so
at its own risk and expense. PCSI shall not be liable or responsible for problems created as a result of Client’s alteration ofServices, Equipment and/or Client’s network or system. If Client wishes PCSI to correct or fix its alterations or problems
relating thereto, such Services by PCSI will be considered a new project and Client agrees that the same terms and
conditions set out in this Agreement shall apply.
17.0 Obligation to a Proper Back‐up Solution.
Client shall be responsible for maintaining backups of all critical software, documents, and applications on all of
Client’s file servers, personal PC's, organizers, and other electronic equipment. Gold level clients must purchase
from PCSI a Total Data Secure solution configuration that will properly backup the entire file server structure of the client. The offsite data backup option must also be purchased and maintained to ensure that the client’s network server infrastructure is protected from serious server failures or problems as well as theft, fire, flood, etc.
18.0 Reimbursement for Supplies.
On occasion, PCSI may need to purchase spare parts, other equipment, supplies, accessories or software; in that case,
Client shall be responsible to and agrees to reimburse PCSI for all such costs or expenses incurred under this project.
No purchases will be made without prior Client approval.
19.0 Client Warranty Regarding Software Licensing and Software Vendor Support.
a. Client warrants that all software it provides to PCSI for installation, configuration or use in any way, has been legally
obtained and is properly licensed. Client further warrants that it has legally purchased sufficient number of copies of suchsoftware and that it has not violated any licensing laws.
b. PCSI has no knowledge regarding licensing of software provided to it by Client and Client indemnifies PCSI for any
installation, configuration or use of such software. Client understands and acknowledges that it shall be solely
responsible and liable for all licensing and purchasing of software.
c. Client must have valid support agreements with their software vendors for business specific applications. Fees and payment for pay per incident support that is required in order for PCSI to provide support or remediation for Client issues will be the sole responsibility of the client.
20.0 Relationship.
PCSI provides Services to Client hereunder as independent contractor, and this Agreement shall not be construed as a
partnership or joint venture.
21.0 Non Solicitation of Employees.
a. Client acknowledges that PCSI has a substantial investment in its employees that provide Services to Client under this
Agreement and those employees are subject to PCSI’s control and supervision. In consideration of this investment, Client agrees not to solicit, hire, employ, retain, or contract with any employee of the other, without first receiving PCSI’s
written consent.
b. If any employee terminates his or her employment with PCSI (regardless of the reason for termination), and is
employed by Client (or any affiliate or subsidiary of Client) in any capacity either during or within a 6 month period, Clientshall immediately pay PCSI an amount equal to 50% of the then current yearly salary or wage paid by PCSI to such
employee.
22.0 Attorneys’ Fees & Costs.
In any action involving the enforcement or interpretation of this Agreement, the prevailing party, whether Client or
PCSI, shall be entitled to its reasonable attorneys' fees and costs, including such fees and costs incurred in
connection with any appeals, in addition to such other relief as may be provided by law.
23.0 Authorization.
Client acknowledges that the person signing this Agreement on its behalf is authorized to do so and may bind
Client to all the terms and conditions contained herein, and represents and warrants that such person is acting
within the scope of his or her authority as an officer, director or duly authorized agent or employee of Client.
24.0 Agreement Headings and Numbering.
Paragraph headings and numbers used in this Agreement are included for convenience of reference only, and, if
there is any conflict between any such numbers and headings, and the text of the Agreement, the text shall
control.
25.0 Non‐Assignment.
Neither party shall assign its rights or obligations under this Agreement without the prior written consent of the
other party, which shall not be unreasonably withheld or delayed.
26.0 Execution of Agreement.
This Agreement may be executed in one or more counterparts, each of which shall be considered and original, but all of which
together shall constitute one and the same instrument.
©Preferred Communication Systems, Inc.
Rev. 1 November, 2010
