Terms of Service

Computer & Information Technology Managed Services Agreement

This Computer & Information Technology Managed Services Agreement (this “Agreement”) is entered into between Andrews & Associates IT Solutions, LLC, a Texas limited liability company, located at 6117 W. Amarillo Blvd., Amarillo, Texas 79106 (“A&A”), and MSA Client that has executed Managed Services Quote & Agreement (MSQ&A) (“Client”), as of the date given on MSQ&A (“Effective Date”). A&A and Client are collectively referred to as the “Parties” and individually as a “Party”.

Recitals

1. A&A agrees to provide the computer and information technology services set forth in Exhibit A to Client.
2. Client agrees to obtain and pay for the computer and information technology services set forth in Exhibit A from A&A.

NOW THEREFORE, in consideration of the services provided by A&A to Client, the Fee (as defined below) payable by Client to A&A, the terms and provisions of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. AGREEMENT

This Agreement is the only agreement between the Parties and supersedes any and all oral discussions and agreements made between the Parties prior to the Effective Date. This Agreement consists of this document and attached Exhibits A and B. This Agreement constitutes the entire agreement of the Parties and shall govern all relations between the Parties.

2. TERM

This Agreement shall commence on the Effective Date and shall continue in full force and effect for 36 consecutive months (“Initial Term”). This Agreement shall automatically renew for subsequent 12-month terms (each a “Renewal Term”), which will be effective unless either Party provides written notice to the other Party of its intent not to renew at least 60 days prior to the expiration of the Initial Term or such then-current Renewal Term, as the case may be. The Initial Term and all Renewal Terms collectively are referred to herein as the “Term”.

3. FEE AND PAYMENT

1. Fee. Client shall pay to A&A a monthly service fees (“Fee”) outlined in the MSQ&A executed by both A&A and Client for the Term for the services set forth in Exhibit A and or any other services and fees A&A and Client agree to via email, voice, text or formal Addendums that postdate this agreement. Payment and use of services indicates acceptance of use of services and goods. A&A may periodically increase the Fee by up to 5.3% on an annual basis, usually on the annual anniversary of the Effective Date. The Fee is subject to change as products are added or removed. The Fee of any third-party software subscription is subject to change in the case of pricing changes by the third-party software vendors. If Client requests any services not contemplated in Exhibit A, the Parties will negotiate the prices for and availability of such services in good faith and will agree to such services and prices in a Change Order, which shall be attached to, and become a part of, this Agreement. The Fee provided for in this Agreement is exclusive of any applicable excise, sales, use, or similar taxes. Client will be responsible for all such taxes applicable pursuant to this Agreement.
2. Invoice. The Fee shall be invoiced to and paid by Client on a monthly basis (“Invoice”). Invoices shall contain a detailed reporting of all work performed by A&A. Payment shall be due within 10 days following the date of the Invoice (“Due Date”). Any Invoice not paid by the Due Date shall be deemed overdue and may be subject to a finance charge of 1.5% per month. The finance charge shall be computed on each day that the payment is overdue and added to the base amount owed by Client. If any Invoice remains unpaid following 30 days from the Due Date, upon 5 days’ written notice to Client, A&A may suspend performance of its obligations without liability to Client pursuant to this Agreement or otherwise until such past due amount is paid in full. If an Invoice remains unpaid following 60 days from the Due Date, upon 5 days’ written notice to Client, A&A may terminate this Agreement at A&A’s sole discretion without further obligation to Client. Notwithstanding anything to the contrary in this Agreement, upon a termination by A&A pursuant to this Section 3(b), Client shall not be relieved of Client’s obligation to pay for all services provided by A&A prior to the termination of this Agreement.

4. CONFIDENTIALITY; NON-DISPARAGEMENT; AND ENVIRONMENTS

1. Client Information. A&A agrees to treat information concerning Client, its affiliates, employees, or clients (“Client Information”) on a confidential basis, except that A&A may disclose Client Information to authorized representatives of A&A or to employees of A&A who have a reasonable need to access such Client Information.
2. A&A Information. Client agrees to treat the terms of this Agreement, the processes used by A&A, and the Fee (“A&A Information”) on a confidential basis, except that Client may disclose A&A Information to authorized representatives of Client or to employees of Client who have a reasonable need to access such A&A Information.
3. Non-Disparagement. The Parties agree, both during the Term and thereafter, not to make statements or take any action which may disparage or slander the other Party’s reputation.
4. ConnectWise RMM and Microsoft 365 have continuous access to A&A’s environments. Though these vendors have continuous access to A&A’s environments, they are not used by all clients and may or may not have access to a specific client’s environment. A&A monitors this access through its vendor due diligence process. Vendors receiving temporary access will be tracked and disclosed to A&A’s environments’ clients, including Client, through a standardized ticket.

5. PERSONNEL

A&A may, but is not required to, provide staff located at Client’s premises at levels required to perform the services set out in Exhibit A within the response and resolution times set forth in Exhibit B. A&A shall have the sole responsibilities and rights for the supervision of, payment of all compensation, benefits, and employer taxes related to, and removal or other adverse action against its employees.

6. DEFAULT AND TERMINATION

1. Default. In the event that a Party fails to perform a material obligation pursuant to this Agreement, notwithstanding the default for nonpayment by Client pursuant to Section 3(b), for a period of 30 days after the nonperforming Party is served written notice to cure the failure to perform (“Cure Period”), the failure to perform the material obligation shall constitute a default of this Agreement (“Default”); provided, however, such Cure Period shall be extended for a reasonable time if the defaulting Party is diligently seeking to cure the Default. In addition to other Defaults, Defaults also occur if either Party files a petition in bankruptcy, is adjudicated a bankrupt, if a petition in bankruptcy is filed against the Party and not discharged within 30 days, or if a Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law.
2. Termination. Pursuant to Section 2, the Parties agree that either Party may terminate this Agreement by giving at least 60 days’ written notice to the other Party prior to the end of the Initial Term or a Renewal Term, as the case may be. In the event of Default outside of the Cure Period, the Party not in Default shall have the right, at its discretion, to immediately terminate this Agreement without penalty. Client agrees that the termination of this Agreement, for any reason, shall not relieve Client of its obligation to pay. The Client agrees to pay A&A in full for the remaining months of service(s) monthly reoccurring charges (monthly billing) from for Initial Term or Renewal Term.
3. Equipment Removal. Upon the expiration or early termination of this Agreement, for any reason, Client shall permit A&A to remove all of A&A’s equipment and supplies from Client’s premises within a reasonable period of time following the expiration or early termination.

7. CLIENT’S PREMISES

If applicable, Client will provide A&A adequate space and facilities, at no charge to A&A, for the on-site services that A&A provides to Client, including space for A&A’s staff located at Client’s premises, if any, and necessary access to Client’s premises so as to allow A&A to perform its obligations pursuant to this Agreement. If applicable, Client may request A&A to relocate the location or locations from which A&A performs the services. If Client requests A&A to move such service locations, Client will cover costs incurred by A&A in connection with such relocations.

8. A&A OWNED EQUIPMENT

Equipment owned by A&A that is installed at Client location shall be under the care, custody, and control of Client at all times. Client agrees that A&A shall retain all right, title, and interest to facilities and equipment owned by A&A and that Client shall not create or permit to be created any liens or encumbrances on such equipment. Client shall not alter, modify, or tamper with the equipment nor will Client relocate the equipment. Client shall pay for the full retail cost of repair or replacement of any lost, stolen, un-returned, damaged, mortgaged, sold, transferred, leased, encumbered, or assigned equipment or part thereof, together with any costs incurred by A&A in obtaining or attempting to obtain possession of any such equipment. Upon expiration or termination of this Agreement, Client agrees to return all such equipment to A&A within 14 days. Equipment not returned after 14 days will be charged to Client.

9. INDEMNIFICATION AND WARRANTIES

1. Indemnification. A&A agrees to indemnify, defend, and hold harmless Client from and against any demands, claims, causes of action, or suits of any kind or nature, including reasonable attorneys’ fees and costs of litigation, incurred by Client to the extent arising out of A&A’s gross negligence or willful misconduct. Client agrees to defend, indemnify, and hold harmless A&A from any and all damages, expenses, or liability (including reasonable attorney’s fees) resulting from or arising out of Client’s gross negligence or willful misconduct.
2. Intellectual Property. All intellectual property of A&A, whether created prior to or during the Term, shall be and remain the sole property of A&A. Client shall indemnify and hold A&A harmless from any claim, demand, liability, cause of action, or damage, for actual or alleged infringement of any intellectual property rights arising from A&A performance of services pursuant to this Agreement.
3. Damages. In no event shall A&A be liable to client for client’s employees, clients, or affiliates for any incidental, consequential, indirect, special or punitive damages related to A&A’s performance or nonperformance of the services pursuant to this agreement. Clients’ sole remedy for any claims related to services A&A’s performance or nonperformance of the service pursuant to this agreement shall be limited, at A&A’s sole option, to a refund of the cost of services provided with the respect to the specific job in question, to A&A’s correction of the services in question, or to termination this agreement.
4. Liability, Fees, and Charges Related to Third Parties.  As part of the services provided by A&A to Client pursuant to this Agreement or Exhibit A, A&A may recommend various outside services that Client should obtain from third parties, including, but not limited to, best practices, HIPPA compliance, Federal Aviation Administration compliance, and compliance with other local, state, federal, or international organizations or agencies.  Regardless of whether or not Client attains such third parties’ services described in this Section 9(d), Client solely assumes any liability in this regard, whether or not the recommendations came from A&A. Further, Client shall be solely responsible for any fees or charges from any third parties, whether or not recommended by A&A.

10. NOTICES

Notices required, or provided for, pursuant to this Agreement shall be in writing and unless otherwise provided, shall be deemed to have been duly given when delivered in person, by facsimile transmission, by electronic mail transmission, or when deposited in the U. S. mail, postage prepaid, properly addressed, registered or certified mail, return receipt requested, to the address as set forth in the introductory clause of this Agreement, or such other address or addresses as may be designated in writing by notice to the other Party pursuant to this paragraph. A Party shall be deemed to have received any notice sent via in person delivery, facsimile transmission, or electronic mail on the day the notice was sent, and three days after the date such notice is sent by U.S. mail.

11. FORCE MAJEURE

Neither Party shall be liable for or be considered in breach of this Agreement due to any failure to perform its obligations pursuant to this Agreement as a result of a cause beyond its control, including any of the following, beyond a party’s control, that renders performance impracticable: act of God or a public enemy; act of any military, civil or regulatory authority; change in any law or regulation; fire, flood, earthquake, storm, or other like event; underlying carrier, A&A equipment, network or facility shortage, relocation, act or omission, upgrade or modification; disruption or outage of communications, power or other utility; labor problem; unavailability of supplies; pandemic, endemic, shelter-in-place orders; or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by A&A or Client with reasonable care. Such events, however, shall not eliminate Client’s responsibility to make payment for the services provided by A&A that are not affected by such events.

12. ASSIGNMENT

Neither Party may assign or delegate its obligations pursuant to this Agreement, either in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. Any attempted assignment in violation of this Section 12 will be void. Notwithstanding the foregoing, a sale or merger of A&A or the sale of substantially all of its assets shall not be deemed to be an assignment.

13. CONSTRUCTION

This Agreement is made pursuant to, and will be construed and enforced in accordance with, the laws of the State of Texas. If any dispute arises between the Parties, the Parties agree that venue for resolution for any dispute shall be proper in Potter County, Texas. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the other provisions of this Agreement. Section headings are for convenience of reference only and shall not affect the interpretation of this Agreement.

14. INDEPENDENT CONTRACTOR STATUS

The Parties acknowledge and agree that A&A is an independent contractor and not an agent or an employee of Client or engaged in a joint venture or partnership with Client. Consistent with the foregoing, the Parties acknowledge that Client shall not deduct withholding taxes, FICA, or any other taxes, employment or otherwise, required to be deducted by an employer. A&A agrees to assume sole responsibility for paying self-employment taxes, income taxes, and any other taxes due on A&A’s compensation pursuant to this Agreement. A&A further acknowledges that it shall not be entitled to any fringe benefits, pension, retirement, profit sharing, or any other benefits accruing to employees of Client.

15. MISCELLANEOUS

1. Modifications. No modifications of this Agreement shall be binding unless signed by both Parties.
2. Nonwaiver of Rights. The Parties agree that no failure or delay to exercise any right, power, or privilege on the part of either Party shall operate as a waiver of any other right, power, or privilege pursuant to this Agreement. The Parties also agree that no single or partial exercise of any right pursuant to this Agreement shall preclude further exercise of that right.
3. Attorney Fees. If any legal action must be taken to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees, in addition to any other relief to which that Party may be entitled.
4. Microsoft 365 Licensing Fees. The services may require A&A to purchase certain “per seat” licenses from Microsoft (which Microsoft refers to as New Commerce Experience or “NCE Licenses”) to provide Client with one or more of the following applications: Microsoft 365, Office 365, Dynamics 365, Windows 365, Microsoft Power Platform, or any future Microsoft offerings (each, an “NCE Application”). As per Microsoft’s requirements, NCE Licenses cannot be canceled once they are purchased and cannot be transferred to any other person. If A&A purchases NCE Licenses for Client, then those licenses will require a one-year term, or Client will be assessed additional Microsoft monthly fees for purchasing month-to-month licensing instead of committing to the one-year term. For that reason, Client understands and agrees that regardless of the reason for termination of this Agreement, Client is required to pay for all applicable NCE Licenses in full for the entire term of those licenses. Provided that Client has paid for the NCE Licenses in full, Client will be permitted to use the applicable NCE Applications until the expiration of their license terms, even if Client moves to a different technology service.

EXHIBIT A

SERVICES PROVIDED TO CLIENT

A&A will deliver to the Client (“Services”) according to the terms and conditions below. A&A will deliver Services & Support to the agreed upon Client’s location. Delivery of service(s) & support shall be subject to availability and to conditions beyond the control of AMA, including, but not limited to, the condition of Client equipment and facilities, failures caused by connectivity or equipment at Client premises, cable cuts, loss of power, local access restrictions, acts of third parties, or due to service limitations caused by equipment modifications, upgrades, relocations, repairs, and similar activity.

A&A shall provide the following services to Client, which include, but are not limited to Products, Quantity, Description, and Pricing outlined in Managed Services Quote and Agreement executed by both parties. In addition, Client is responsible for any other services and fees A&A and Client agree to via email, voice, text, or formal Addendums that postdate this agreement. Payment of services indicates acceptance of the use of services and goods.

Example of services:

1. Maintaining, on a monthly basis, necessary maintenance of workstations mentioned above, including, but not limited to, application of security and third-party software patches, which will be done on a day of A&A’s choosing and will be done after business hours as to not disrupt Client’s business operations
2. Pricing is subject to change during the installation phase if A&A uncovers additional items (Virtual Server(s), additional PC(s), remote users not accounted for, etc.). These additions will be communicated to the point of contact for the Client. Pricing is subject to change increase or decrease as the Client adds or removes devices to the network (computers, APs, switches, etc.). Some of these changes are automated and some of these changes are monthly or quarterly audits. Adjusting the MSA fee is part of this audit process.
3. Determining the type of support, on a case-by-case basis, for onsite and remote support. This is provided as part of the Fee, regardless of amount of time spent by A&A.
4. Monthly invoicing with detailed reporting of all services provided by A&A.
5. Detailed documentation of network and devices.
6. Staff to ensure tickets are handled in accordance with Exhibit B.
7. 24/7 on call rotation and answering service to be provided by A&A and third-party answering service. All services pursuant to this Agreement will be provided by qualified employees of A&A, but calls may be answered by a third-party answering service.
8. Office 365 is executed on yearly term and Client is responsible for annual dues, renewals and formal termination.
9. MSA covers the maintenance of computers not the installation and setup of new computers or moving existing ones. A&A will charge $200 to set up new and install new computers. A&A will charge $200 to move, set up and install existing computers that are bought from A&A. A&A will charge $300 to set up new and install new computers. A&A will charge $300 to move, set up and install existing computers that are not bought from A&A
10. All hardware purchases requested by the client will be invoiced by A&A and paid in advance by the client. A&A will bill any labor associated with the project in a true-up bill after the successful installation of the hardware.
11. THIS QUOTE & AGREEMENT FOR SERVICES DOES NOT INCLUDE AUDITS OF ANY KIND (NETWORK, CYBER INSURANCE, CYBER SECURITY, PCI DSS, ETC). PLEASE SEE FEE SCHEDULE FOR PRICING. If you are converting email from GoDaddy or Gmail to M365 there is $100 fee per mailbox.

Special Services Product (Audits)	Hourly Rate
Cyber Insurance Audit	$155
Network Security Audit (Check List)	$145
Network Security Audit (Level 3)	$195
Cyber Security Audit (Check List)	$145
Cyber Security Audit (Level 3)	$195




Products are billed by the hour.

Client Authorization

• Client authorization conveyors with signature on Managed Services Quote & Agreement, use of services and payment of invoices.
• I authorize A&A to provide the services described in the amendments to this agreement.
• I acknowledge that A&A bills items do not cover in MSQ&A as projects and at hourly rates of $195 per hour rounding to the nearest fifteen minutes.
• I certify that I am at least 18 years of age and legally authorized to enter this agreement for services specified, and acknowledge that I have read, understand, and agree to all rates, terms, and conditions.
• The Parties agree to be bound by the terms of this agreement including any Amendments that may be executed from time to time.

Andrew and Associates Points of Contact for Problem Resolution

1. Submitted through portal – If a service ticket is submitted through the portal during the hours of 7:30 AM and 7:00 PM a service ticket is automatically created, and you should receive a written response within 15 minutes that a ticket has been created and the next available technician will reach out to you shortly. These tickets are triaged and assigned to the next available technician and are worked in the order they are received based on urgency, if you email outside of the above hours the ticket will be addressed the following business day during standard business hours.
2. Email Helpdesk – If you email helpdesk (helpdesk@andrewsama.com) during the hours of 7:30 AM and 7:00 PM a service ticket is automatically created, and you should receive a written response within 15 minutes that a ticket has been created and the next available technician will reach out to you shortly. These tickets are triaged and assigned to the next available technician and are worked in the order they are received based on urgency, if you email outside of the above hours the ticket will be addressed the following business day during standard business hours.
3. Email Support – If you email support (support@andrewsama.com) during the hours of 7:30 AM and 7:00 PM you should receive a written response within 15 minutes that a ticket has been created and the next available technician will reach out to you shortly. The emails are triaged and are worked in the order they are received based on urgency, if you email outside of the above hours then the on-call technician will reach out within 30 minutes and will determine if the situation is something that can wait till business hours or if it is something that needs to be addressed right away.
4. Calling – If you call 806-242-1088 between the hours of 7:30 AM and 7:00 PM a representative will take the call and submit a service ticket, they will attempt to assist you on the phone or connect you to a technician who is more qualified to assist. If the issue is not resolved at the time you are on the line the ticket will be assigned to a technician who will either come onsite to assist or it will be escalated to a more advanced technician if necessary.
5. Escalation Points of Contact after using steps 1-4:
   • Alisa Durham, Director of Client Experience – alisa@andrewsama.com or 806-282-7646
   • Chuck Howell, SVP of Operations – chuck@andrewsama.com

EXHIBIT B

SERVICE LEVEL AGREEMENT
RESPONSE AND RESOLUTION TIMES

Client requests for services will fall into the five categories shown below. Client shall place all support requests via phone, email, or help desk using an approved method for the applicable category. A&A shall respond and provide a resolution in accordance with the following:

* “Escalation Threshold” means the Escalation Threshold process used by A&A. All tickets and reported issues received by A&A are monitored by a ticket coordinator employed by A&A. Each ticket and reported issue will be assigned by the ticket coordinator to a technician and the technician will work and resolve the ticket and reported issue in a timely manner. If Client does not feel their issue is being resolved in a timely manner, Client should issue another ticket or re-report the issue and the ticket coordinator will review the request and escalate the ticket or reported issue to a higher tier technician or to management of A&A.

** “ASAP” means A&A will take all reasonable steps to ensure resolution as quickly as possible.