Terms & Conditions

These Terms & Conditions (“Terms”) apply to Client purchases from Pointer Tech Solutions, LLC, 8804 Tatler Street, Denham Springs, LA 70706 (“Service Provider”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product“).  The term “Agreement” shall mean Managed IT Services Agreement (MSA), including any addendums, exhibits, SOWs (statement(s) of work), work orders, proposals or any other Agreement as agreed among the Parties. Client hereby engages and retains Service Provider to render Services or provide Product, as specifically set forth and limited in the Agreement. Except as otherwise stated therein, subsequent Agreements shall be made a part of and subject to these Terms. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic Agreement, or other mutually acceptable Agreement, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes.  In the event of any conflict between the Agreement and these Terms, the terms of the Agreement will prevail over these Terms.

 

Service Provider reserves the right to change the Terms at any time, and any such change shall apply to any Agreement entered after such change, including any repeat or renewal of an Agreement.

 

 

1. General Requirements & Conditions

1.1   System

For the purposes of these Terms, “System” means, collectively, any computer, computer network, computer system, peripheral, or device installed, maintained, supported, monitored, or operated by Service Provider pursuant to and as specifically identified in an Agreement.  To avoid a delay or negative impact on our provision of any Services, during the term of each Agreement, Client agrees to refrain from modifying or moving the System (except for a System specifically designated for transportation between two or more locations, such as laptop computers or tablets), or installing software on the System, unless Service Provider expressly authorizes such activity. Service Provider will not be responsible for any consequences arising out of or relating to any unauthorized movement or installation taken by Client.

 

1.2   Maintenance; Updates

If patches and other software-related maintenance updates (“Update(s)”) are provided under an Agreement, Service Provider will install the Updates only if Service Provider has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware.  Service Provider will not be responsible for any downtime or losses arising from or related to the installation or use of any Updates installed by Service Provider, provided that the Update was installed in accordance with the manufacturer or applicable vendor’s instructions.

 

1.3   Third-Party Service Providers

“Third-Party Service Providers” means Services provided by an entity or a Party other than the Service Provider in fulfillment of the AGREEMENT.

 

Client’s right to use the Third-Party Services is subject to Client’s understanding of, compliance with, and consent to these Terms and of any third-party agreements, which Service Provider does not have authority to vary, alter or amend.

 

Therefore, Service Provider may utilize a Third-Party Service Provider at its discretion to provide the Services in accordance with these Terms.  The Third-Party Service Provider may require the Service Provider to sign a contract with the Third-Party Service Provider for its services (“Third-Party Contract”), and the terms of the Third-Party Contract may impose conditions and requirements upon Client.  Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or appear on our website, which identifies the Third-Party Service Provider and a link to its terms and conditions or EULA.  Client hereby agrees to review all Third-Party Terms and Conditions and consent to those Third-Party Terms and Conditions which Client has consented Service Provider to contract upon its behalf.

 

The links are being provided as a courtesy, Client should monitor the links for the 3rd Party Providers to determine if they have the most current Terms and Conditions.

 

1.4   Third-Party Product Vendors

“Third-Party Product Vendors” means software, machinery, equipment, and/or products inclusive of component parts purchased from vendors in fulfillment of the Agreement requirements.

 

Service Provider will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to Client but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and Service Provider will not be held liable as an insurer or guarantor of the performance, downtime, or usefulness of any Third-Party Product.  The Third-Party Product Vendor may require Service Provider to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”), and the terms of the Third-Party Contract may impose certain conditions and requirements upon Client.  Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or attached to the Agreement which identifies the Third-Party.  Client hereby agrees to review all Third-Party terms and conditions and consent to those Third-Party terms and conditions which Client has consented Service Provider to contract upon its behalf.  Third-Party Product Vendor terms and conditions link of PDF can be found at our website and/or Agreement as applicable.

 

1.5   Third-Party Products

Unless otherwise stated in an Agreement, all hardware, software, peripherals, or accessories purchased through Service Provider (“Third-Party Products”) are nonrefundable once the applicable Agreement is placed in Service Provider’s queue for delivery.  Service Provider will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to Client but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and Service Provider will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third-Party Products.  Unless otherwise expressly stated in an AGREEMENT, all Third-Party Products are provided “as is” and without any warranty whatsoever as between Service Provider and Client (including but not limited to implied warranties).

 

1.6   Third-Party Support

If at Service Provider’s discretion, a Client hardware or software issue requires vendor or Original Equipment Manufacturer (“OEM”) support, Service Provider may contact the vendor or OEM (as applicable) on Client’s behalf and pass through to Client all fees and costs incurred in that process. If such fees or costs are reasonably anticipated in advance to exceed one-hundred dollars (“$100.00”), Service Provider will obtain Client’s consent before incurring such expenses on Client’s behalf unless exigent circumstances require otherwise.

 

1.7   Subcontractors

“Subcontractors” means third-party to whom Service Provider contracts to provide specified services to complete the services indicated in the applicable Agreement.

 

1.8   Conditions of Service

Client’s System is eligible for provision of Services as set forth in an Agreement, provided the System is in good condition, and the following serviceability requirements and site environmental conditions are met:

 

1.8.1       Client shall provide adequate workspace, heat, light, ventilation, electrical current and number or types of electrical outlets, adequate internet, remote access, and long-distance and other telephone access for use by Service Provider’s representatives.

 

1.8.2       Service Provider’s representatives shall have, and Client shall provide full administrative access to the System to affect the necessary monitoring and/or supplemental services.

 

1.8.3       Service Provider reserves the right to suspend or terminate the provision of any Service if, in Service Provider’s sole discretion, conditions at the service site pose a health or safety risk.

 

It is the responsibility of Client to promptly notify Service Provider of any events/incidents that may impact the services defined within these Terms and/or any supplemental service needs.

 

Unless otherwise specified in any Agreement, Service Provider shall provide Services during Service Provider’s regular business hours, in accordance with Service Provider’s Service policies then in effect, which may be modified or amended at any time, in Service Provider’s sole discretion.

 

To ensure Service Provider is able to provide efficient and effective System support response, Client agrees that Client will inform Service Provider prior to, Client making any modification, installation, or service performed on the System by individuals not employed or contracted by Service Provider. Client will be billed according to Service Provider’s hourly rates as outlined in the Agreement, to remediate and restore the Systems and/or Services to a state prior to changes.

 

Only representatives authorized by Service Provider will be eligible to access and service Client’s System.  Any unauthorized access or service conducted on the System without the express consent of Service Provider, which results in negative System performance, will not be covered by the monthly plan fee as documented in the Agreement or other contract documents and will be billed according to Service Provider’s hourly rates as outlined in the Agreement.

 

Service Provider shall be obligated to provide service only at (a) the Service Site(s) as identified in the Agreement; and (b) client systems as identified, which is defined as client-covered devices in the Remote Monitoring Management (“RMM”) platform.  If Client desires to relocate, add or remove locations, Client shall give appropriate notice to Service Provider of Client’s intention to relocate sixty (60) days in advance.  Service Provider reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by Client.  Such right includes the right to refuse service at the relocation and/or new site.

 

1.9   Service Limitations

In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:

 

1.9.1       Cost of consumables, replacement parts, hardware, software, network upgrades, and associated services are outside the scope of these Terms. Service Provider will provide consultative specification, sourcing guidance, and/or Time and Material/Project offerings.

 

1.9.2       Any unauthorized changes made to the System without Service Provider’s written consent which causes issues or failures to the System, are beyond the responsibility of Service Provider and Client will be billed the full cost of all labor, equipment, materials, and related items or services to restore the System to the condition prior to any such unauthorized action.

 

1.10   Onboarding Process

Client acknowledges and agrees that Service Provider will have no responsibility for any deficiencies in the current operating systems and infrastructure until the Service Provider has had a reasonable opportunity to review the current system and provide Client with its recommendations, and Client has accepted and implemented same.

 

1.11   Offboarding Process

In the event of the suspension, expiration, or termination of any Agreement by either party, except as otherwise set forth in an Agreement, the Client shall be responsible for the full payment of any remaining license fees, including but not limited to Microsoft Office 365 licenses, for the duration of the agreed-upon term. Service Provider shall make reasonable accommodations to transition the provision of Client’s Services to the Client or such third party designated by the Client (collectively the “Onboarding Provider”). Client shall indemnify and hold harmless Service Provider, any Third-Party Service Provider, and their respective directors, officers, members, employees, consultants, and agents from and against any and all claims or losses resulting from the activities of the Client or the Onboarding Provider during the transition period from Service Provider to the Onboarding Provider, including but not limited to any unpaid license fees.

 

1.12   Network Devices, Hardware, and Systems

Service Provider shall only be responsible for providing services to network devices, hardware, and systems identified by the Client and Service Provider and set forth in the latest Agreement and covered by Remote Management Monitoring (“RMM”). Service Provider may, in its sole discretion, deny requests to add devices, hardware, or systems. The Client shall be responsible for isolating and protecting the system by not allowing additional devices, hardware, or systems on the System unless approved by Service Provider.  Service Provider shall have no responsibility for any devices, hardware, or systems or damage resulting therefrom that are added to the System without Service Provider’s approval. Service Provider shall have the right to cancel this contract if devices, hardware, or systems are added without its approval. If Client obtains new devices, hardware, or systems and wishes to request Service Provider’s services to extend to new devices, hardware, or systems, said extension shall not take effect unless and until both Parties agree in writing to a new Agreement and the device is added to the RMM. Said written, signed Agreement shall then become an addendum to this contract and be incorporated herein. Service Provider reserves the right to deny any requests for additional services and/or additional hardware/systems for any reason in their sole discretion.

 

Any changes that will decrease the total compensation of this Agreement will be limited to a maximum decrease of ten percent (10%) during the Commitment Term.

 

1.13   Authorized Contact(s)

Client understands and agrees that Service Provider will be entitled to rely on any directions or consent provided to Service Provider by any of Client Authorized Contacts, as indicated in an applicable Agreement.  If no Authorized Contact is identified in an applicable Agreement, then Client Authorized Contact will be the person(s) who signed the Agreement.  If Client desires to change Client Authorized Contact(s), Client shall notify Service Provider of such changes in writing, which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.

 

1.14   Shared Administrator Credentials

If Client shares server, network, or software application administrative credentials, Service Provider will not be held liable or responsible for any outages, errors, breaches, data loss, and misconfiguration since multiple administrators from different companies jeopardizes the integrity of the support outlined in these Terms.

 

2   Confidentiality and Non-disclosure

2.1   Definition of Confidential Information

As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format, whether oral, written, electronic, or other, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

 

2.2   Client Confidential Information

Client Confidential Information shall include any personally identifiable information or protected health information of Client employees, Client customers, and Client Data. Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996, and as amended), and that the requirement for any such Agreement in addition to these Terms may be necessary to provide the Services hereunder.  Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, Client hereby agrees to defend, indemnify and hold harmless Service Provider and any affiliated company, Service Provider’s respective present and former shareholders, officers, directors and employees and its attorneys and agents, and Service Provider’s predecessors, successors, insurers, assigns, heirs, executors, and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs, and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way related to the failure of Client to comply with these Terms in the proper handling of protected health information to the extent not caused by Service Provider’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify Service Provider of the necessity of same.

 

2.3   Confidential Information of each Party

Confidential Information of each Party shall include the terms and conditions and all Agreements as well as business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes disclosed by such Party.

 

2.4   Confidential Information (other than Client Data)

Confidential Information (other than Client Data) shall not include any information that:

 

(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,

(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,

(c) is received from a third party without breach of any obligation owed to the Disclosing Party, or

(d) was independently developed by the Receiving Party.

 

2.5   Protection of Confidential Information

The Receiving Party shall:

 

(a) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,

(b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms or otherwise in any manner to the Disclosing Party’s detriment, and

(c)  except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors, and agents who need such access for purposes consistent with these Terms.

 

2.6   Non-disclosure

Neither Party shall disclose the terms of any Agreement and/or other contract documents to any third party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.

 

2.7   Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost if the Disclosing Party wishes to contest the disclosure.

 

If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

2.8   Return or Destruction of Confidential Information

Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody, or control or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy.  In the event that the return or destruction of Confidential Information is unduly burdensome or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.

 

3.   Provision of Materials and Services to Service Provider

Client agrees to timely furnish, at Client’s own expense, all personnel, all necessary computer hardware, software, and related materials and appropriate and safe workspaces for purposes of Service Provider or its subcontractors performing the Services.  Client will also provide Service Provider or its subcontractors with access to all information, passwords, and facilities requested by Service Provider that are necessary for Service Provider or its subcontractors to perform the Services.  Access may be denied for any reason at any time, however, if access to information, passwords, or facilities is denied, Client understands that Service Provider or its subcontractors may be unable to perform their duties adequately. and if such a situation should exist, Client will hold Service Provider harmless for any resulting damages.

 

4.   Responsibility for Equipment

Client acknowledges that from time to time (a) Service Provider may identify additional items that need to be purchased by Client, and (b) changes in Client system may be required for Service Provider to meet Client requirements. In connection therewith, Client agrees to work in good faith with Service Provider to effectuate such purchases or changes, and such changes shall be set forth in a new Agreement. If Service Provider is required to purchase any assets, including computer hardware and/or software, in connection with Service Provider providing the Services, all such assets will remain the sole property of Service Provider, except those assets sold by Service Provider to Client or procured by Service Provider on Client’s behalf shall be the sole property of Client. Client will take such reasonable precautions to ensure the quality, completeness, and workmanship of any item or equipment or hardware furnished by Client and for ensuring that the materials provided to Service Provider, or its subcontractors do not infringe or violate the rights of any third party. Unless otherwise specified in the Agreement, it is not the intent, nor does the Service Provider provide any type of backup of Client data. Client will maintain adequate backup for all data and other items furnished to Service Provider.

 

It is the Customers responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that cause damage to the Product or Services provided by Service Provider, and Service Provider disclaims all responsibility for any loss, including, but not limited to, data.

 

5.   Client Data Ownership and Responsibility

Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information, or material proprietary submitted by Client to Service Provider.

6.   Intellectual Property

Client acknowledges and agrees that any written program materials, protocols, research papers, or other writings, as well as any improvements, inventions, new techniques, programs, or products (collectively the “Work”) made or developed by Service Provider before, during or after the commencement or expiration or earlier termination of an AGREEMENT, shall be deemed to be made by Service Provider for the sole and exclusive benefit of Service Provider, and that Client disclaims any benefits of the so-called “work made for hire doctrine within the meaning of the United States Copyright Act, Title 17, United States Code.  Service Provider retains all rights, title, and interest in and to in any Work invented, created, or composed prior to, during the course of, or incident to the performance of an Agreement, as well as any code, software, materials, or methods created prior to, during the course of or after the conclusion of any Agreement (all such Work collectively referred to as the “Intellectual Property”). Client acquires no right or interest in any such Intellectual Property by virtue of an Agreement or the work performed under any Agreement.

6.1   Intellectual Property Use

Client may only use and disclose Intellectual Property in accordance with the terms of these Terms and applicable Agreements. Service Provider reserves all rights in and to the Intellectual Property not expressly granted in these Terms.  Client may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Intellectual Property, without Service Provider’s prior written approval.  Except as expressly authorized in these Terms or any Agreements, Client may not (a) distribute the Intellectual Property to any third party (whether by rental, lease, sublicense, or other transfer) or (b) operate the Intellectual Property 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 Intellectual Property – applicable installation instructions, or release notes will contain the relevant details.

7.   License Agreements

(a) License. Subject to these Terms, Service Provider grants Client a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Client’s own internal use.  At all times, all software on the System must be genuine and licensed, and Client agrees to provide Service Provider with proof of such licensing upon its request.  If Service Provider requires Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of Service Provider providing its Services to Client.

 

(b) Software Installation or Replication.  If Service Provider is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed.  Client’s act of providing any software to Service Provider will be deemed Client’s affirmative acknowledgment to Service Provider that Client has a valid license that permits Service Provider to perform the Services related thereto.  In addition, Client will retain the duty and obligation to monitor Client’s equipment for the installation of unlicensed software.  Client will indemnify and hold harmless Service Provider against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Client providing infringing materials to Service Provider or any Client’s breach of this Section.

 

(c) Pre-Existing License agreements.  Any software product provided to Client by Service Provider as a reseller for a third party, which is licensed to Client under a separate software license Agreement with such third-party, will continue to be governed by the third-party license agreement.

 

(d) EULA.  Portions of the Services may require Client to accept the terms of one or more third-party end user license Agreements (“EULAs”).  If the acceptance of a EULA is required to provide the Services to Client, then Client hereby grants Service Provider permission to accept the EULA on Client’s behalf.  EULAs may contain service levels, warranties, and/or liability limitations that are different than those contained in these Terms.  Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs.  If, while providing the Services, Service Provider is required to comply with a third-party EULA and the third-party EULA is modified or amended, Service Provider reserves the right to modify or amend any applicable Agreement with Client to ensure its continued compliance with the terms of the third-party EULA.  Client agrees to hold harmless and Indemnify Service Provider against Client’s violation of any of the terms and conditions included in the subject EULA.

8.   Service Provider Employees, Agents, or Subcontractors

Client acknowledges that Service Provider has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors, and independent subcontractors. To the extent permitted by law from the Effective Date of the last Agreement and up to one (1) calendar year after the date of termination of any Agreement, Client shall not hire or contract directly or indirectly with any of the Service Provider’s employees, agents or subcontractors who have communicated with and/or worked on any Service for Client.  Client and Service Provider mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by Client of this provision.  Therefore, Client and Service Provider mutually agree that in the event of a breach by Client, in any manner, of this provision, Client shall pay to Service Provider as liquidated damages, an amount equal to one-hundred fifty thousand dollars ($150,000.00).  This amount is an effort by both parties to properly and reasonably assess the damages that Service Provider would suffer as a direct result of a breach by Client, taking into account the following facts and circumstances: (a) an average employee working for Service Provider will generate significant revenues for the Service Provider and remain employed by the Service Provider for an extended period of time; (b) Service Provider will lose significant revenue and incur significant costs in conjunction with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced, and (d) accurately assessing the value of such employee to the Service Provider upon such breach is virtually impossible.  In light of these circumstances, Client and Service Provider mutually agree that this liquidated damages provision represents reasonable compensation to Service Provider for the losses that it would incur due to any such breach.  Client and Service Provider further acknowledge and agree that nothing in this paragraph shall limit Service Provider’s rights to obtain injunctive relief or any other damages including, but not limited to, punitive, consequential, special, or any other damages, as may be appropriate in connection with Client’s breach of this section. 

9.   Warranty

Except as set forth in an Agreement, no warranty shall be provided by Service Provider.  Any warranties shall be limited to those provided by a Third-Party Product Vendor.

 

Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by Service Provider Products shall be deemed null and void if the applicable product is (i) altered, modified, or repaired by persons other than Service Provider, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Service Provider (ii) misused, abused, or not operated in accordance with the specifications of Service Provider or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than Service Provider or persons approved or designated by Service Provider.

 

Notwithstanding the above, Service Provider does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards.  Service Provider does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery or performance. 

10.   Software, Hardware, & Security

Client understands and agrees that data losses or network failures may occur, whether or not foreseeable.  Therefore, Client must maintain proper security for Client’s System, including but not limited to software and hardware updates that are made available by the manufacturer.  Client will adhere to software and hardware updates and maintain specific security standards, policies, and procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework 

11.   Client Cyber Security

It is understood that within the Services provided, it is not the intent, nor does Service Provider provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for Client unless otherwise specified in the Agreement.  As cyber threats are always evolving, it is strongly recommended that Client engage the services of a cyber protection third-party vendor to independently monitor the cyber controls and cyber activities in Client System. 

12.   Regulatory Compliance

Any software or service provided by Service Provider is not intended to bring Client into full regulatory compliance with any rule, regulation, National Standard, or requirement.  The software, service, or solutions may aid Client’s efforts to achieve regulatory compliance; however, Service Provider does not provide comprehensive compliance solutions. 

13.   Unauthorized Information Transfer

In no event, except for the willful misconduct or gross negligence on its part, shall Service Provider or its subcontractors, whether under these Terms, or an Agreement, or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach or other form of cyberattack, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Client’s data or Systems are breached because of the distribution of and Client’s response to, unsolicited email, direct mail, facsimiles, unsolicited text messages, voice calls, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags. 

14.   Extraordinary Events

In no event shall Service Provider or its subcontractors, whether under these Terms, an Agreement, other work order, or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty, or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of a data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of a cyberattack or any other event not contemplated by these Terms. 

15.   Release with Limitation of Liability

This paragraph limits the liabilities arising under these terms or any Agreement and is a bargained-for and material part of these Terms.  The parties acknowledge and agree they would not enter these terms unless they could rely on the limitations described in this paragraph. Except for Service Provider’s fraud, willful misconduct, or gross negligence, client and any of client affiliates and each of their respective agencies, employees, officers, directors, members, shareholders, nominees, consultants, successors, and assigns agree  to the fullest extent permitted by law and except as otherwise noted in these terms, including indemnification obligations agree to release the other party and any of their affiliates and each of their respective agencies, employees, officers, directors, members, employees, shareholders, nominees, consultants, subcontractors, successors and assigns for special, incidental or consequential damages, indirect damages, loss of good will or business profits, work stoppage, data loss, computer failure or malfunction, any and all other commercial damages or loss, or exemplary or punitive damages. Service Provider’s aggregate liability relating to any of the services shall be quantified in the Agreement. Service Provider shall not be liable to the other party for any delay in delivery or performance or failure to deliver or perform at or within the deadlines set forth in these terms. 

16.   Mutual Indemnification and Hold Harmless

Each party agrees to the fullest extent permitted by law shall at all times defend, indemnify, pay, save and hold the other parties and any of their affiliates and each of their respective agencies, employees, officers, directors, members, shareholders, nominees, subcontractors, consultants, successors and assigns (collectively, the “mutually indemnified parties”) harmless from each and any and all liabilities, damages (including, without limitation, direct, special and consequential damages), costs, expenses, suits, civil or alternative dispute resolution proceeding, losses, claims, actions, violations, fines and penalties (including without limitation, court costs, reasonable attorney’s fees and any other reasonable costs of litigation) (hereinafter collectively, the “claims”) that any of the mutually indemnified parties may suffer, sustain or incur to the extent caused by the negligence of the mutually indemnified parties arising out of these terms.

 

The preceding indemnification obligations are conditioned on any of the indemnified parties: (i) notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent. 

17.   Service Provider Insurance

Service Provider agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law.  Without limiting the foregoing, to the extent these Terms create exposure generally covered by the following insurance policies, Service Provider will maintain at its own sole cost and expense at least the following insurance covering its obligations under these Terms: (a) commercial general liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than one-million dollars ($1,000,000) per occurrence; (b) business automobile liability for hired and non-owned vehicles in an amount of not less than one-million dollars ($1,000,000) for each accident; (c) workers compensation at statutory limits; and (d) professional liability Insurance covering errors and omissions and wrongful acts in the performance of the Services.  Such insurance will bear a combined single limit per occurrence of not less than one-million dollars ($1,000,000). 

18.   Client Insurance

18.1   Commercial Property Insurance

Client shall secure, at Client’s own cost and expense, property Insurance for Client’s equipment that is part of the provisions of the Agreement. 

18.2   Cyber Insurance

Client acknowledges that Client is solely responsible for obtaining and maintaining its own cyber liability insurance for the duration of these Terms to adequately insure its cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client’s specific coverage and policy limit requirements. Client acknowledges that Service Provider does not provide Client with any form of cyber liability or other insurance coverage in connection with the Services or an executed and that Client’s use of the Services does not, in any way: (i) replace a cyber liability policy, (ii) mitigate Client’s need for cyber liability insurance coverage or (iii) relieve Client’s responsibility for obtaining its own cyber insurance coverage. 

18.3   Mutual Waiver of Subrogation

To the extent permitted by law, each party waives all rights against the other for recovery of damages to the extent these damages are covered by the worker’s compensation (to the extent permitted by law) and employers’ liability, professional liability, general liability, property insurance, commercial umbrella/excess, cyber or other commercial liability insurance obtained by either party. Client will not hold Service Provider its subcontractors and/or third-party service providers responsible for such losses and will confirm that client insurance policies referenced above provide for the waiver of subrogation included in the terms of service. 

19.   Disclaimers

The express remedies set forth in these Terms will constitute Client’s exclusive remedies, and Service Provider’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.

 

Except for the warranties made by Service Provider in section 9, which are limited warranties and the only warranties provided to client, the services and deliverables are provided strictly “as-is.”  Service Provider does not make any additional warranties, expressed or implied, arising from the course of dealing or usage of trade, or statutory, as to the deliverables or services provided hereunder or any matter whatsoever.  The parties disclaim all warranties of merchantability, fitness for a particular purpose, satisfactory quality, title, and non-infringement.

 

Service Provider does not warrant that the services or any deliverables will meet any of client requirements not set forth herein, that any deliverables will operate in the combinations that client may select for use, that the operation of any deliverables will be uninterrupted, secure, or error-free, or that all errors will be corrected.  If pre-production (e.g., “alpha” or “beta”) releases of software are provided to client, such copies are provided “as-is” without warranty of any kind.

 

No statement by any Service Provider employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever. 

20.   Severability

If any provision of these Terms is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative, and enforceable to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms shall not render invalid the remainder of the Terms. 

21.   Amendment

These Terms may not be amended except by a writing executed by an authorized individual of the Service Provider. 

22.   Relationship

The Parties are independent parties, and these Terms do not make the Parties principal and agent, partners, employer, and employee; nor does it create a joint venture.  It is further understood that there is no relationship, including but not limited to a partnership, joint venture, subcontractor, or other commission-based relationship, between any party that referred Service Provider or Client to the other party to these Terms. 

23.   Law

These Terms shall be governed by and construed in accordance with the laws of the State of Louisiana without reference to principles of conflicts of laws.  The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Louisiana. 

24.   Waiver

Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies or a waiver by it of any subsequent default by the other Party. 

25.   Force Majeure

Neither party will be liable to the other party for delays or failures to perform its obligations under these Terms and Conditions or any Agreement because of circumstances beyond such party’s reasonable control.  Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware solution, or if such loss, delay or failure to perform was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic, or other physical event and civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom. 

26.   Data Access/Storage

Depending on the Service provided, a portion of Client data may occasionally be accessed or stored on secure servers located outside of the United States. Client agrees to notify Service Provider if Client requires Service Provider to modify its standard data access or storage procedures. 

27.   Assignment

Client may not assign Client’s rights or obligations under these Terms without Service Provider’s prior written consent which shall not be unreasonably withheld.

 

Nothing in this Agreement shall prohibit Service Provider from assigning this Agreement to a third party.

28.   Payment, Late Payment, and Default

Payment due date: All invoices issued to you are due and payable to us within the terms stated on the invoice unless otherwise agreed in writing by cash, check, credit card, or direct deposit in accordance with these terms and conditions and in the means listed on the invoice.  Client shall pay all undisputed invoiced amounts withing fifteen (15) days of the due date.  If the Client should dispute any invoiced amount, the Client shall timely pay, in accordance with the terms, any undisputed amounts.  Interest, as outlined below, shall not accrue on any unpaid disputed amounts while the dispute is ongoing.  Upon Service Provider’s delivery of a corrected invoice, Client shall promptly pay the outstanding amounts.

 

Withholding of payment:  No deductions shall be made from any amounts payable hereunder to the Service Provider on account of any penalty, liquidated damages, retainage or other sums claimed or withheld by Client from payments to the Service Provider , provided however that the Client shall be entitled to withhold amounts payable hereunder to the Service Provider to the extent that such amounts are the subject of a bona fide dispute between the Client and the Service Provider under Section 28.

 

Late payment: If Client fails to pay an invoice within fifteen (15) days of the due date, Service Provider may, in its absolute discretion and without prior notice, suspend or discontinue the supply of goods and/or services to Client.

 

Recoveries:  All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by Client to Service Provider and will be recoverable from Client, in addition to the original invoice amount. If Client defaults in payment of any invoice on time, monies which would have become due by Client at a later date shall be immediately due and payable without any further notice to Client. Collectively, all monies are referred to in these conditions as a “sum due”.

 

Interest: If payment of any sum due is not made on time, Service Provider will charge interest daily on the sum due at the maximum rate allowed by law, calculated and charged daily, on and from, the due date until the sum due is paid in full.

 

Application of funds: All payments of the sum due made by Client to Service Provider will be applied as follows:

 

first in or towards payment of any costs, including legal costs, charges, expenses, or outgoing amounts paid by Service Provider in relation to any dishonored check fees, collection costs, or any other action taken by Service Provider for the recovery of any amounts owing by Client to Service Provider.

second, in or towards payment of any interest due or payable hereunder.

third, in or towards payment of Client’s debts to Service Provider in order from the longest standing due to the most recently incurred.

Security: Service Provider may require Client to provide security over Client’s property, including the goods or any other property of Client, as collateral to be held as security for any sum due or as a condition precedent to the continuation of supply of goods or services by Service Provider to Client.

 

Payment arrangements: If a repayment arrangement is made in relation to any sum due and the supply of goods or services is resumed, but a subsequent repayment due under that payment arrangement is not made on time, Service Provider may, in its absolute discretion and without prior notice, again suspend or discontinue the supply of goods or services to Client. 

 

Power of Attorney:  Client hereby irrevocably appoints us as its agent/attorney-in-fact to do anything Service Provider considers fit for the recovery of the sum due or the creation, perfection, or enforcement of any collateral held or to be held as security for any sum due.

 

Other remedies: Service Provider may exercise any of its rights and remedies, including taking legal action against Client for the recovery of any monies due to Service Provider, notwithstanding it may have exercised other rights under these conditions.

29.   Taxes

It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under these Terms. Client shall pay any such taxes unless a valid exemption certificate is furnished to Service Provider for the state of use.

30.    Annual Inflation Increase

To adjust for inflation, there is an automatic increase of five percent (5%) per year of Client’s Agreement.

 

 

 

Your Responsibilities for Ticketing 

Submitting of Service Requests

In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of Service Requests as outlined in Appendix A.

 

Appendix A

 

Service Request Submitting Process

 

When you contact the Help Desk to submit a service request, only the methods below must be used:‍‍

Phone: (225) 351-0775

Email: Help@Pointertechs.it

Client Portal: https://Portal.Pointertechs.it

 

• Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.
• If the issue is being submitted by either phone or external email, you must include your name, company, and return contact details.
• Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue they are working on.
• If you don’t submit your service request following the above approved method, your request will forego a guaranteed response time.

 

Service Request Submitting Process

 

Service Requests that must be addressed outside of business hours must be lodged by phone (charges apply for after-hours work). If not, the Service Request will be viewed on Our next Business Day.

Appendix B

Guaranteed Response Times

We always aim to hit our “Response Target” when it comes to responding to your issues, however, we absolutely guarantee we will respond by the “Response Guarantee” times listed below: