Terms & Conditions
The terms and conditions contained in this document (this "Agreement") constitute a legal contract between the party identified as the Customer ("you" or "Customer") on the proposal, quotation or work order to which this Agreement is attached (the "Order") and Service Provider (as defined below) regarding the Service Provider's provision of services (the "Services") and, if applicable, the resulting product(s) ("Deliverables") as set forth in the Order. If this Agreement is not accepted by Customer as provided herein within thirty (30) days from the date of the Order, such Order and this Agreement shall be null and void and of no force or effect upon the expiration of such thirty (30) day period. For purposes of this Agreement, the "Service Provider" means (i) Information Systems Engineering, Inc., a Wisconsin corporation, and/or (ii) Paper-Less, LLC, a Wisconsin limited liability company, as indicated on the face of the Order.
- Agreement. Customer is deemed to have accepted this Agreement and all of its terms and conditions upon the earliest to occur of (i) both parties' execution and delivery of the Order, (ii) Customer's authorization of the Service Provider to perform the Services or (iii) any other event constituting acceptance under applicable law. Unless Authorized (as defined below), nothing contained in Customer's purchase order, if any, or any other writing or oral representation previously, simultaneously, or hereafter received by the Service Provider shall amend, modify, waive, cancel, void or replace any of the terms, covenants, and conditions of this Agreement. This Agreement, together with the Order and any invoice issued by the Service Provider hereunder, contains the entire understanding of the parties with respect to the subject matter of this Agreement. For purposes of this Agreement, "Authorized" means obtaining prior written approval or permission by with respect to the Service Provider, the Director, Professional Services, Vice President, and President at its main office in Waukesha, Wisconsin.
- Services. Subject to Customer's timely payment of all Fees (as defined below) and compliance with the terms and conditions contained herein, the Service Provider agrees to provide Customer with the Services set forth in the Order and to perform such services in accordance with the terms and conditions of this Agreement. To the extent that Customer requires or requests additional services or services that exceed the Services set forth in any Order, Service Provider will charge an additional fee for such additional services or out of scope work. The Services do not include (i) bug resolution for commercial software products, (ii) integration of custom code, or (iii) overall project management and coordination services. Customer may purchase such services from the Service Provider for an additional cost by entering into a separate written and Authorized Order for such Services.
- Customer Responsibilities. Customer is responsible for (i) procuring and applying for any and all licenses, such as IBM OS/400, Microsoft SQL, Microsoft Windows, etc. that are required to run all applications that support the Services and/or Deliverables, (ii) granting Service Provider personnel and consultants proper security clearances, assignments, configurations and setup upon commencement of the Services and from time to time thereafter upon the Service Provider's request, (iii) providing and maintaining secure remote system access (e.g., VPN, Citrix and/or dedicated Remote Desktop Protocol (RDP) access; web-based meeting or presentation type access such as WebEx, GoToMeeting, Team Viewer, or other similar applications are not acceptable) for the performance of project tasks, (iv) assigning and scheduling Customer resources, and (v) maintaining network performance and resolving network related issues. Customer recognizes that estimates, including target dates and budgets, are estimates only, and that many key aspects of meeting target dates, budgets and other estimates are dependent on the Customer, including, but not limited to, timely management decisions, availability of key personnel, timely completion of Customer tasks, etc. The Service Provider strives to manage estimates and when a deviation occurs, identify and quantify issues that affect the estimate or scope of Services. The parties agree that Services are subject to any assumptions set forth in the Order, and the Service Provider shall not be liable for any delay or failure to provide Services or Deliverables which arises from Customer's failure to perform its obligations hereunder, or provide timely cooperation as reasonably requested by the Service Provider.
- Cancellation. If Customer desires to cancel any scheduled meeting, Customer shall give the Service Provider notice of cancellation at least seventy-two (72) hours in advance of the scheduled meeting time. If Customer does not provide timely notice of cancellation to the Service Provider, Customer may be charged a cancellation fee that will cover out of pocket expenses, such as non-refundable reservations and travel costs, and the cost of the assigned personnel if the Service Provider is not able to reassign the individual(s) for the allotted time.
- Fees and Billing. Subject to the Service Provider's performance of the Services, Customer agrees to pay the Service Provider in accordance with the rates, costs, and charges set forth in the Order and this Agreement ("Fees"). On-site visits are billed for a minimum of four (4) hours. Overtime rates of 150% of the quoted rate apply for after-hours work (defined as work performed between 5:00 p.m. and 8:00 a.m.) and weekend work (defined as services performed between 5:00 p.m. Friday and 8:00 a.m. Monday). Holiday rates of 200% of the quoted rate apply for all holiday work. Remote or telephone support is billed for a minimum of one-half (1/2) hour. Customer acknowledges and agrees that the rates stated in the Order are provided for informational purposes only and are subject to change at any time upon written notice to Customer. In addition, Customer agrees to reimburse the Service Provider for travel time and food, lodging and incidental expenses. Travel time is billed at 50% of the normal hourly rate for travel between the customer's location and the consultant’s starting location. Meals, tips and incidental items are charged on an actual expense basis. The Service Provider charges reasonable and actual expenses for meals, tips, airfare, airport parking, hotel, internet, phone, rental cars or taxis, materials and other travel costs. Mileage is billed at the current allowable mileage reimbursement rate as defined by the IRS per business mile traveled from the consultant’s starting location. Unless otherwise Authorized, all Fees will be billed in US Dollars using, if applicable, the exchange rate on the date of the Order.
- Invoices and Payment. Unless otherwise specified in the Order (including with respect to any deposit or retainer), the Service Provider will submit invoices to Customer on a weekly basis for Services performed during the prior week. Customer shall pay all undisputed amounts within fifteen (15) calendar days of its receipt of invoice. Customer shall provide written notice to the Service Provider of any invoice dispute (together with a reasonably detailed description of the dispute) prior to the due date of the applicable invoice. Customer will be deemed to have accepted all invoices for which the Service Provider does not receive timely notification of disputes, and shall pay all undisputed amounts due under such invoices in accordance with this section. If Customer fails to timely pay any amount due under this Agreement, or if Customer defaults in the performance of this Agreement, the Service Provider may, without liability to Customer and without prejudice to the company's other lawful remedies: (i) terminate the Service Provider's obligations under this Agreement, (ii) declare immediately due and payable all of Customer's obligations to Service Provider, (iii) change credit terms with respect to any further Services, and/or (iv) suspend or discontinue any further work until Customer pays all overdue amounts. Customer agrees to pay, at Service Provider's discretion, a late payment charge of up to 1.5% per month on all amounts not paid in full when due, and Customer will reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and internal staff time.
- Taxes. All taxes (other than the Service Provider's income taxes), including, without limitation, GST, VAT, property, customs, excise, sales, use, manufacturer’s, retailer’s occupation, duty, or similar taxes; and any customs agent or broker fees, inspection or testing fee, freight costs, insurance, consular fees, or any other tax, fee, or charge of any nature whatsoever, imposed upon, in connection with, or measured by any transaction between the Service Provider and Customer shall be paid by the Customer in addition to the Fees quoted or invoiced. Customer agrees to indemnify and hold the Service Provider harmless from any claims or damages resulting from Customer's failure to comply with this section.
- Placement Fee. During an engagement and for a period of six (6) months thereafter, each party agrees not to employ, hire, or solicit for employment, directly or indirectly, any personnel of the other party without the prior written consent of such other party. If either party hires any of the other party's personnel, the hiring party shall pay to the other party, as liquidated damages, a placement fee equal to one-third (1/3) of the hired person’s current annual compensation. Notwithstanding the foregoing, this section shall not apply to hiring made as a result of routine general public solicitations of employment in the ordinary course of business and which are not targeted to or at the other party's personnel (including through employment search firms).
- Warranty. Service Provider warrants that (i) the Services will be performed in a professional and workmanlike manner in accordance with this Agreement the Order and (ii) the Services and Deliverables at the time of delivery will be in conformity in all material respects with all requirements or specifications stated in this Agreement and the Order. Services Provider’s sole and exclusive obligation and liability and Customer's sole and exclusive remedy for any breach of the foregoing warranty is to use reasonable efforts to cure the breach or for Customer to obtain a refund of monies paid for the non-conforming Services or Deliverables. The Service Provider will choose in its sole discretion whether to attempt to remedy any alleged breach of warranty or to refund monies to Customer. As provided below, the Service Provider does not make any warranty express or implied that the Deliverables provided pursuant to custom development Services will be bug-free or error-free. Service Provider will address any errors or bugs in timely manner upon Customer's request at its then-current applicable hourly rate. EXCEPT FOR THE WARRANTY SPECIFICALLY PROVIDED ABOVE, THE SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT OR ANY ORDER, INCLUDING, WITHOUT LIMITAITON ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, USAGE OF TRADE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, SERVICE PROVIDER DOES NOT MAKE ANY WARRANTIES EXPRESS OR IMPLIED OR ENDORSEMENTS REGARDING ANY THIRD-PARTY PRODUCTS, SERVICES, MATERIALS OR INFORMATION NOR DOES SERVICE PROVIDER WARRANT THAT THE SERVICES OR DELIVERABLES PROVIDED PURSUANT TO THIS AGREEMENT, ORDER, OR CUSTOM DEVELOPMENT SERVICES WILL BE UNINTERRUPTED, BUG-FREE OR ERROR FREE.
- Limitation of Liability. EXCEPT FOR (I) LIABILITY FOR BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND (II) THIRD PARTY CLAIMS THAT THE SERVICES OR DELIVERABLES NFRINGE OR MISAPPROPRIATE THAT THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS ENFORCEABLE IN THE UNITED STATES, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR DIMINUATION OF VALUE, OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVEDAMAGES, , ARISING OUT BREACH OF CONTRACT (INCLUDING THIS AGREEMENT OR ANY ORDER OR STATEMENT OF WORK), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF THE SERVICE PROVIDER TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE FEES IN THE LAST 12 MONTHS AND ALLOCABLE TO THE DELIVERABLES OR SERVICES THEREOF WHICH GAVE RISE TO THE CLAIM.
- Confidentiality. The Service Provider, Customer, or both, may obtain access to Confidential Information of the other party. The Service Provider and Customer shall not, directly or indirectly, disclose, or cause to be disclosed, any Confidential Information of the other party to any third party and will themselves use the Confidential Information only to carry out those purposes contemplated by this Agreement. The restrictions described in this section shall survive termination of this Agreement for a period of three years. The parties further agree that nothing in this Agreement shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides the disclosing party with broader protection than that provided in this Agreement. In the event either party breaches any of the provisions of this section, and in addition to, and not in lieu of, any other remedies, the non-breaching party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction. “Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information. Notwithstanding anything contained in the Agreement or any NDA executed by the Parties, Service Provider will have a right to disclose, publish, disseminate, and use general ideas, concepts, know-how, and techniques that are acquired and retained solely in, and Service Provider first reduces to tangible form solely from, the unaided memories of Service Provider or its employees or representatives.
- Ownership. As between the Service Provider and Customer, all Intellectual Property Rights (as defined below) and all other rights in and to the Deliverables and Services (except for any Confidential Information of Customer or any documents, data, know-how, methodologies, software and other materials provided to the Service Provider by Customer) and all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications developed or acquired by the Service Provider prior to the commencement or independently of this Agreement and used by the Service Provider in connection with performing the Services and/or furnishing the Deliverables shall be owned by the Service Provider. Subject to Customer's payment of all Fees owing hereunder, the Service Provider hereby grants Customer a license to use all such rights free of additional charge and on a non-exclusive, worldwide, royalty-free, perpetual, and non-assignable basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. . For purposes of this Agreement, "Intellectual Property Rights" means all (i) patents, patent disclosures and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (iii) copyrights and copyrightable works (including computer programs), (iv) trade secrets, know-how and other confidential information, and (v) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- Limitation Period. No lawsuit or other action may be brought by either party hereto, or on any claim or controversy based upon or arising in any way out of this Agreement after one (1) year from the date on which the cause of action arose regardless of the nature of the claim or form of action, whether in contact, tort (including negligence) or otherwise; provided, however, the foregoing limitation shall not apply to the collection of any amounts due Company under this Agreement.
- Miscellaneous. This Agreement shall not be construed to create a partnership, joint venture or employer/employee relationship or authorize either party to act as agent for the other. Each Service Provider is severally liable for its obligations under this Agreement and any Order and in no event shall any Service Provider be liable for breaches of this Agreement by any other Service Provider. The failure of either party to insist, in any one or more instances, upon performance of the terms or conditions of this Agreement shall not be construed as a waiver or a relinquishment of any right granted hereunder or of the future performance of any such term, covenant or condition. Neither this Agreement nor any of Customer's rights or duties hereunder, in whole or in part, shall be assigned, sublicensed, sold or otherwise transferred by Customer to any third party without the Service Provider's Authorization. Any attempted assignment, sublicense, sale or other transfer without Authorization shall be void. In the event that any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the parties agree that such invalidity or unenforceability shall not affect any other provision of this Agreement and the remaining covenants, restrictions and provisions shall remain in full force and effect to the extent permitted by governing law. Neither party shall be liable for delays in its performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, acts of public enemy, acts of government or courts of law or equity, civil war, insurrection or riots, terrorism, fires, floods, explosions, earthquakes or other casualties, strikes or other labor troubles. This Agreement shall be exclusively governed by and construed according to the internal laws of the State of Wisconsin, regardless of conflict of law principles, and any cause of action, claim, suit, or demand allegedly arising from or related to this Agreement shall be brought exclusively in a Court situated in the State of Wisconsin.
Service Level Guidelines
This Service Level Agreement (“SLA”) governs, as of the Revision Date, Service Provider’s provision of Managed Services being provided to Customer under the Managed Services SWO (“MS SWO”). In the event of any inconsistency between the MS SWO and this SLA, the terms of this SLA shall supersede the terms of the MS SWO.
1. ASSUMPTIONS. The following provisions will apply to the Managed Services described in the MS SWO
provided to Customer by Service Provider:
1.1. Support agreement calls are prioritized by severity as provided below, and then by the order in which each call is received.
1.2. The Service Provider will report directly to the Customer and to any other party designated by the Customer in connection with the performance of the Managed Services under this Agreement. Customer agrees to provide necessary cooperation to assist the Service Provider in providing support via telephone or remote support tools before an on-site service is requested.
1.3. Customer will be responsible to have a suitable, serviceable broadband connection (1.5 Mbps download, and 600 kbps upload or greater bandwidth required) and agrees to provide the necessary cooperation to join an engineer online via an acceptable and secure Internet connection to gain direct access to Customer’s system(s) for the purpose of providing remote monitoring, support, and troubleshooting.
1.4. Customer will, in order to maintain security from threats via the Internet, have in place a hardware firewall protection device acceptable to Service Provider.
1.5. Customer is responsible for software licensing compliance.
1.6. The MS SWO and this SLA encompass current and supported IBMi Server platforms only. Notwithstanding any other provision in the Agreement or this Exhibit A, the Service Provider may refuse to provide any services to the Client if, in the Service Provider’s reasonable discretion, the Client’s servers, software, or other technology is not current or sufficient.
1.7. Service calls that cannot be completed during Standard Business Hours will be completed by the Service Provider during the next available time slot during Standard Business Hours. If the service issue is deemed critical or is scheduled, the Service Provider, at its sole discretion, may continue to work on the issue after Standard Business Hours at no additional cost to the Customer.
1.8. Monthly and Setup Fees: The pricing in the MS SWO is subject to review every twelve (12) months and may be modified at the sole discretion of the Service Provider, provided that the maximum annual increase shall be ten percent (10%).
2.1. Monitoring Services Provided. Service Provider will provide the Monitoring Services described in the MS SWO.
2.1.1. Notification. Service Provider will promptly contact the Client designated contact in the event of any monitoring event that requires Service Provider assistance to resolve.
2.2. Included Support Services Provided. Service Provider will provide the Support Services described in the MS SWO.
2.2.1. Contacting Service Provider. Client may contact Service Provider using the following.
2.2.2. Call support 1-888-473-0800
2.2.3. Email: Support@ise-erp.com
2.2.4. Open a ticket directly through https://support.ise-erp.com
2.3. Additional Services. At request of Client, Service Provider may provide the Additional Services listed in the MS SWO on a time and material basis.
2.4. Availability. Support Services will be available to authorized employees of Client, Monday through Friday from 8 am – 5 pm CST, excluding US Federal Government holidays (“Standard Business Hours”).
3. SUPPORT ISSUE REPORTING AND RESOLUTION
3.1. Response Expectations. The following “Response Schedule” will apply during:
|Category||Category Response||Error Restoration Target|
|Monitoring Services||Within 1 Business Hour||4 Business Hours|
|Support Services||Within 4 Business Hours||8 Business Hours|
|Additional Services||Within 8 Business Hours||As agreed by the parties|
3.2. Status Updates. Status updates for issues relating to Monitoring Services or for Support Services will be provided as mutually agreed either by phone or email. Status updates for Additional Services will be provided using email or other mutually agreed upon method.
3.3. Escalation. Issues related to Monitoring Services and Support Services will be escalated within Service Provider and to the designated Client contact if the Response Time is not likely to be met.
4. SLA Remedies
If Service Provider fails to meet (1) an SLA Response Time in two consecutive months (i.e. misses the Response Time two months in a row) or (2) an Error Restoration Target two times in a twelve-month period, then as its sole and exclusive remedy Client may terminate the MS SWO for the impact Service on five (5) days’ notice and Service
Provider will refund a prorated amount of any prepaid and unused fees related to that Service.
5. CHANGES TO SERVICE LEVEL AGREEMENT
Service Provider reserves the right to amend the SLA from time to time upon written notice. Any such amendment will not take effect during the term of the Support Services agreement but will become effective upon renewal of any Support Services or for any SWOs executed following the date of such amendment.
Capitalized terms not otherwise defined here shall have the meaning given to them in the MS SWO:
“Business Hours” means the hours within the Standard Business Hours. If the Response Time is 4 Business Hours and the initial call is logged at 3 pm CT, Service Provider will respond no later than 10 am CT, the next day.
“Respond” means that a Service Provider subject matter expert has contacted Client regarding a request by Client regarding any Error and appropriate technical support resources have been assigned to the issue. “Response” has a corresponding meaning.
“Restore” means a temporary set of procedures that users may follow to circumvent or mitigate the impact of an issue, notwithstanding that the issue still exists. “Restored” and “Restoration” have a corresponding meaning.
IBM and XA Managed Services Addendum
Service Provider will provide the following Managed Services to Customer subject to the Service Level Guidelines, attached to this Addendum.
Monitoring Services: Included in 8x5 monitoring (proactive)
- Printer Management
- Monitor print queues
- Application Job Management
- Monitor job and job queues
- Manage unattached jobs
- Analyze failed jobs and reporting
- IBM Administration Functions
- Monitor and administer operating system functions
- Maintain and manage logs within the operating system and environment
- Monitor drive/file system space
- Schedule JOBs in IBM native scheduler
- Monitor subsystems and system JOBs
- Performance Monitoring
- Provide daily monitoring (operational) - CPU Utilization, Memory Usage, User Activity, Disk Space Usage/ I/O
- Infor Development Framework (IDF) level monitoring
- Monitor environment
- Monitor specific servers - System Link/Net Link/NMS/HPS Auxiliary from the Link Manager
- Infor Application Administration Functions
- Monitor system to ensure it meets minimum space requirements
- Restart down applications
- Perform Spool file management
- Clean up application message queues.
- Maintain and manage logs within the application
- Review and analyze application logs and take corrective action.
- Take corrective action on the outstanding application messages in message queues
- Infor XA Backup services**
- Maintain backup schedules
- Monitor backups and notify of issues
- Restores upon request (may require assistance from 3rd party vendor)
Support Services: Included in 8x5 upon customer request (reactive)
- Operating System level User Authorization and Management
- Perform user creation, profile modification, suspension tasks as assigned
- Perform password resets
- Application-level User authorization and management
- Modify, add, and delete users
- Create user profiles/ security maintenance
- Manage user privileges and roles
- Perform password Changes
- Incident Management
- Provide first-level user support of Xtreme ticket
- Provide incident escalation management
- Support customer-created incidents with Infor Xtreme
- Troubleshoot issues through remote diagnoses
Additional Services: Not included but available as time and material services (upon request)
- System Patch Management
- Install patches/cyclical upgrades to OS
- Apply CUM/GROUP/HIPER PTF’s
- Refresh PTF’s levels
- Application Patch Management
- Provide component system updates that include fixes for incidents and minor and major release
- Request installs of patch
- Install product PTFs, patches/cyclical/upgrades to application environment
- Request promotion of patch once tested
- Perform patch promotion from test to production environments
- IBM Hardware Management Console (HMC) and LPAR Management
- HMC operations and HMC administration
- Manage LPARs through HMC
- Provide HMC updates and server firmware updates through HMC
- Dynamic LPAR - add, move and remove resources using HMC
- IBM Backup/Recovery
- Troubleshoot BRMS backup issues. Create, modify, delete control groups and policies.
- Create Full System Save for all backup policies
- Define tasks within the overall restore process
** Customer is responsible for managing backup media
Out of Scope: any activity not specifically listed in Monitoring Services or Support Services and any Additional Services unless requested.