Terms and Conditions

Complete Terms of Service
This Complete Terms of Service Contract (“Contract”) does not define specific services or pricing, nor obligate clients to purchase any services for any period of time. The Contract only defines the legal foundation of the relationship between Inter-Quest and its clients. Specific goods and services including pricing and commitment terms are described in separate Addenda, Schedules, Sales Orders, and/or Service Requests.

1. DOCUMENT ROLES
1.1 THE ROLE OF THIS CONTRACT

This Contract contains provisions that shall govern all goods and services that Inter-Quest may provide or sell to Client. No provision of this Contract may be waived, released, modified, amended, deleted, or terminated except in writing and signed by an authorized representative of each party. The terms of this Contract shall be deemed incorporated in each and every Addendum, Schedule, Sales Order, Service Request, Change Order, or Amendment to Terms and Conditions Contract, whether or not each such document explicitly references this Contract. In the event of a conflict between this Contract and any Associated Document as defined below, the Associated Document shall control. The “Effective Date” is the date of this Contract.

1.1.1 Any Service Agreement(s), Addenda, Schedule(s), Sales Order(s), Service Request(s), Change Order(s), or Amendment(s) to Terms and Conditions Contract may be referred to collectively and severally as Associated Document(s).

1.1.2 Specific services and goods shall be delivered to Client only under Associated Document(s), except in the event of an emergency during which no Associated Document(s) is/are then currently in effect.

1.2 THE ROLE OF ADDENDA

1.2.1 Addenda are specific terms and conditions of each service or offering. An Addendum may change, alter, amend, or limit the terms of this Contract. Addenda are only effective if they are dated after the Effective Date, and if they are signed by an authorized representative of each Party.

1.3 THE ROLE OF SCHEDULES

1.3.1 Schedules contain defined listings required to support each specific Addendum and contain any and all applicable Service Levels. The Schedules may change, alter, amend, or limit the terms of this Contract. Schedules are only effective if they are dated on or after the Effective Date, and if they are signed by an authorized representative of each of the Parties.

1.4 THE ROLE OF SALES ORDERS AND SERVICE REQUESTS

1.4.1 The role of a Sales Order/and or a Service Request is to set forth the specific items or services requested by Client and to be delivered by Inter-Quest in accordance with its related Addendum and/or Schedule.

1.4.2 No Sales Order or Service Request may change or alter the terms of this Contract. Sales Orders are only effective if they are dated on or after the Effective Date, and if they are signed by an authorized representative of each of the Parties.

1.5 THE ROLE OF CHANGE ORDERS

1.5.1 The Role of a Change Order is to set forth specific, mutually agreed-upon changes to a Schedule or Sales Order by the Parties.

1.5.2 A Change Order must be signed by authorized representatives from each of the Parties. No Change Order may change, alter, amend, or limit the terms of this Contract.

1.6 AMENDMENT TO TERMS AND CONDITIONS CONTRACT

1.6.1 An Amendment to the Terms and Conditions Contract is to make specific, mutually agreed-upon changes to this document, and it represents the only acceptable method of making modifications to this document. Any Amendment to Terms and Conditions Contract must be titled “Amendment to Terms and Conditions Contract” and be dated on or after the Effective Date, and signed by an authorized representative of each Party.

2. TERM AND TERMINATION

2.1 The term of this Contract shall be a period beginning on the Effective Date and will continue in effect until terminated as allowed herein.

2.2 This Contract shall remain in effect as long as: (i) there are any Associated Document(s) outstanding for which Inter-Quest’s services have commenced but have not been fully completed; (ii) Client has not fully paid all outstanding Inter-Quest invoices; or (iii) Inter-Quest has performed services, or has ordered any third-party goods or services, for which no invoice has yet been generated.

2.3 Even after the termination of any Associated Document(s) for any reason: (i) Client shall be obligated to pay any and all amounts that it owes Inter-Quest for services rendered and goods sold or ordered before such termination as defined by Service Requests, Sales Orders, or Change Orders, or any and all amounts for ongoing services and goods as defined by Addenda or Schedule(s); and (ii) both parties still shall be bound by all provisions of this Contract to the extent they relate to or govern any aspect of any matter that occurred before such termination, as well as all payment obligations and terms, confidentiality provisions, all limitations of liability, all representations made by either party, all attorney’s fee provisions, and all covenants that by their express terms continue past termination.

2.4 Either party may terminate this contract for any reason. If Client wishes to terminate contract and Inter-Quest’s service, Client must give Inter-Quest written notice. InterQuest will continue to provide service for three (3) calendar months from the date of cancellation, during which time Inter-Quest will assist client in transitioning to a new service provider or other environment. Client agrees to pay the agreed-upon monthly fee during this transition period. This term is nonnegotiable, and there is no option for early termination without paying for three (3) months of service.

2.5 In the event Client is in breach of any obligation under this Contract or under any Associated Document(s), not including any unpaid portion of an invoice being disputed, and such breach is not cured within fifteen (15) calendar days after written notice from Inter-Quest to Client, Inter-Quest may stop delivering services and/or goods to Client. In the case of a project, Inter-Quest may prevent the use of goods and services installed in the project until such breach is cured, and/or may impose additional terms and conditions as a requirement for continuation or resumption of service. In such an event, Inter-Quest shall have no liability for failure to provide services, goods, or other information to Client.

3. HOURS OF OPERATION AND RESPONSE TIMES 

3.1 Inter-Quest will typically deliver remote services from 8:00am to 5:00pm (CT), Monday through Friday, with the exception of Inter-Quest Holidays. Inter-Quest will typically deliver on-site services from 8:00am to 5:00pm (local time), Monday through Friday, with the exception of Inter-Quest Holidays.

3.2 Regular Service Hours are defined as 8:00am to 5:00pm (local time), Monday through Friday, not including Inter-Quest Holidays. Any time outside of those hours is considered “After Hours”. Clients who initiate a request for After-Hours Services that are not specifically covered by Associated Document(s) understand that they may incur an “after hours” or “emergency services” fee.

3.3 All After-Hours Services provided by Inter-Quest, unless specifically covered by Associated Document(s), will be billed at 1.5 times the normal billable rate (for each service type), or the After-Hours rate specified in an Associated Document.

3.4 All response times will be classified as “best effort”.

4. PAYMENT

Sales Orders

4.1 At the time that Products are ordered from Inter-Quest, Inter-Quest will generate an invoice, which may include a valid purchase order number (PO Number) issued by Client.

4.2 Inter-Quest will invoice client at the time of processing the order and Client agrees to pay Inter-Quest according to the terms stated on the order/invoice. If Client disputes any portion of the invoice, Client agrees to pay the undisputed portion of the invoice and to submit a Written Notice within thirty (30) calendar days of invoice date documenting the reasons why the remaining amount is disputed. After receipt of such notice, Inter-Quest will undertake an investigation of the disputed charges, and both Parties agree to make a best-efforts attempt to resolve the dispute. Any failure by Client to submit a Written Notice of charges being disputed within thirty (30) calendar days of invoice date shall be deemed a final approval and acceptance of all charges on the invoice.

4.3 Client agrees to pay Inter-Quest a finance charge of three and one half percent (3.5%) per month or the maximum allowable by law, whichever is less, on balances for which payment has not been received within thirty (30 days of the invoice date, excluding balances for which Client has submitted a Written Notice under 4.2.

4.4 Client will be subject to any and all applicable taxes or Government-mandated fees. If Client is exempt from any of the taxes or Government-mandates fees, then the client must provide written proof of said exemption. Project Labor

4.5 At the time that a Project Schedule is approved by Client and submitted to Inter-Quest, InterQuest will generate an invoice, which may include a valid purchase order number (PO Number) issued by Client.

4.6 Inter-Quest will invoice client at the substantial completion of the Project Schedule, and Client agrees to pay Inter-Quest within 30 days or receipt of invoice. If Client disputes any portion of the invoice, Client agrees to pay the undisputed portion of the invoice and to submit a Written Notice within thirty (30) calendar days of invoice date documenting the reasons why the remaining amount is disputed. After receipt of such notice, Inter-Quest will undertake an investigation of the disputed charges, and both Parties agree to make a best-efforts attempt to resolve the dispute. Any failure by Client to submit a Written Notice of charges being disputed within thirty (30) calendar days of invoice date shall be deemed a final approval and acceptance of all charges on the invoice.

4.7 Inter-Quest may offer certain discounts for full prepayment of project labor.

4.8 Client agrees to pay Inter-Quest a finance charge of three and one half percent (3.5%) per month or the maximum allowable by law, whichever is less, on balances for which payment has not been received within thirty (30 days of the invoice date, excluding balances for which Client has submitted a Written Notice under 4.6.

4.9 Client will be subject to any and all applicable taxes or Government-mandated fees. If Client is exempt from any of the taxes or Government-mandates fees, then the client must provide written proof of said exemption.

5. THIRD-PARTY GOODS AND SERVICES 

5.1 Although Inter-Quest may assist in procuring, installing, servicing, returning, and/or exchanging of goods and/or services manufactured and/or delivered by third parties, Inter-Quest only acts as a reseller of these goods and/or services. Inter-Quest is neither an agent, nor representative, nor warranty service center for any Products. Client acknowledges and understands that Inter-Quest neither designs, nor publishes, nor manufactures any such Products, and therefore disclaims any and all warranties without limitation, and Client waives such claims against Inter-Quest. Client acknowledges that its sole warranty related to any Products are limited to any warranty that may be given by the manufacturer or publisher of the Products.

5.2 Inter-Quest cannot be held responsible for any errors, defects, malfunctions, or other problems resulting from (i) incorrect specifications having been submitted to Inter-Quest, (ii) Client having approved incorrect specifications, (iii) improper use of Products, (iv) any modification having been made to said Products by anyone other than InterQuest personnel, (v) Client’s negligence, (vi) hardware equipment malfunctions, or (vii)any other circumstances not caused by Inter-Quest, and any effort by Inter-Quest to diagnose or correct any of the above problems shall be performed at Inter-Quest’s then-current time and material rates.

5.3 Client acknowledges that some goods and services cannot be returned or cancelled once ordered and agrees that Inter-Quest is under no obligation to take back or cancel any such goods or services, once ordered by Client.

5.4 For third-party goods ordered from Inter-Quest, risk of loss or damage shall pass to Client at the time such goods are tendered to a common carrier for shipment to Client, unless Client purchases shipping insurance.

5.5 Inter-Quest reserves the right to engage subcontractors to perform under the terms of this Contract or any Associated Document(s).

6. LIMITATION ON LIABILITY AND DAMAGES

6.1 Inter-Quest agrees to perform services under this Contract and the Associated Document(s) in accordance with industry best practices. Nevertheless, both Parties agree and understand that the complex and technical nature of computer software, computer hardware, communication systems, and Internet connectivity relating to the services provided by Inter-Quest are rarely free from defect, rarely perform without interruption, and rarely provide complete security; and therefore, Inter-Quest does not warrant them as such and it is therefore impossible to guarantee the trouble-free performance of information technology goods or services, even when installed and maintained according to best practices.

BASIS OF THE BARGAIN

6.2 The Parties acknowledge that prices have been set, and the Contract entered into, in reliance upon the limitations of liability, remedies, damages, and the disclaimers of warranties and damages set forth herein, and that all such limitations and exclusions form an essential basis of the bargain between the parties. Specific remedies provided herein or in any Addendum are the exclusive remedies available to Client.

CLIENT DATA

6.3 Client understands that although Inter-Quest will exercise best efforts in safeguarding Client’s data and may perform backups of Client’s data as an initial part of any Services rendered, Client is solely responsible for maintaining current backups of all data before any Services are performed, and, with the exception of gross negligence or willful intent to cause damage, in no event will Client hold Inter-Quest liable for any special, indirect, punitive, consequential, or incidental damages, including, without limitation, any lost profits, loss of business, or damage to or loss of any electronic files, records, or data.

NO OTHER WARRANTY

6.4 Except for the express warranties set forth in this Contract, any Addenda, or any references therein, the services and Client’s use of the services is at its own risk. Inter-Quest does not make, and hereby disclaims, any and all representations and warranties, express or implied, whether in fact or by operation of law, statutory or otherwise, including, but not limited to, warranties of marketability, profitability, fitness for a particular purpose, suitability, non-infringement, title, or arising from a course or dealing, or trade practice.

LIMITATION OF DAMAGES

6.5 With the exception of gross negligence or willful intent to cause damage, in no event will Client hold Inter-Quest liable for any special, indirect, punitive, consequential, or incidental damages, including, without limitation, any lost profits, damage to or loss of any records or data, or any claim or demand against Client by any other party due to any cause whatsoever, even if Inter-Quest has been advised of the possibility of such damages or should have known of such possibility. Except in the case of gross negligence or willful intent to cause damage, Inter-Quest’s entire liability (whether in contract, tort, negligence, or by statute, or otherwise) to Client or to any third party shall not in the aggregate exceed the lesser of (i) the cost of correction or replacement by Inter-Quest, or (ii) ninety (90) days of Inter-Quest’s charges applicable to the Schedule(s), Sales Order(s), Service Request(s), or Change Order(s) under this Contract for the specific deliverables which are the subject of the alleged claim. In the event that this Contract be terminated as provided for herein, the provisions of this section shall remain in full force.

7. CONFIDENTIALITY

7.1 “Confidential Information” means any proprietary information owned, developed, possessed, or used by either Party, including, but not limited to, technology, software, trade secrets, service-delivery documents, financial information, lists of employees, business plans and business developments, pricing information, and/or the existence or content of this Contract and any Associated Document(s).

7.2 “Confidential Information” shall not include any information that a) is, at the time of disclosure, publicly known under circumstances involving no breach of this Contract; b) is lawfully and in good faith made available to the receiving party by a third party who did not derive it, directly or indirectly, from Inter-Quest or Client; or c) is independently developed by either Party without use of Confidential Information.

7.3 During the Term of this Contract and for a period of two (2) years thereafter, neither Party shall disclose any Confidential Information obtained from the other Party in the course of providing services or goods under this Contract, unless so directed by the other Party or by a court of law or government authority. Except as to trade secrets, such nondisclosure obligation shall not terminate. Furthermore, during the term of this Contract and thereafter, neither Party shall use Confidential Information for its own benefit or for the benefit of a third party, other than in furtherance of the purposes of this Contract.

8. USE OF PROPRIETARY OR INTELLECTUAL PROPERTY 

8.1 In providing services to Client, Inter-Quest may deploy proprietary technology or other intellectual property developed or otherwise owned by Inter-Quest, which shall remain the exclusive property of Inter-Quest. However, during the course of providing service, Inter-Quest hereby grants Client a non-exclusive right to use such property. Client’s right to use such property shall end upon termination of the Associated Document(s).

8.2 The Parties acknowledge and agree that Service Provider may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, deigns, know-how, or other intellectual property owned by Service Provider or its licensors, and Service Provider may also create additional intellectual property based thereon in the performance of the Services (collectively, the “Service Provider Intellectual Property”). Client agrees that any and all proprietary rights to the Service Provider Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of providing Services, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of Service Provider, free from any claim or retention of rights thereto on the part of Client, and Client hereby assigns to Service Provider any rights it may have in any of the foregoing.

8.3 Service Provider hereby grants Client a perpetual, worldwide, royalty-free, nonexclusive, non-transferable right and license to use, execute, reproduce, transmit, display, perform, create derivative works from, make, have made, sell and import the deliverables provided hereunder, including such Service Provider Intellectual Property solely as it may be incorporated therein, only for its own internal business purposes and to provide services to its customers consistent with the purpose of the Services provided by Service Provider.

8.4 Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any data, information or material proprietary to Client and provided or submitted by Client to the services provided by Service Provider (collectively, “Client Data”), and Service Provider shall not be responsible or liable for deletion, correction, destruction, damage, loss, or failure to sure any Client Data. Client has, and shall retain, ownership of all Client Data. In the event that this Agreement is terminated, Service Provider shall make available to Client a file of Client Data within thirty (30) days of termination if client so requests at the time of termination.

8.5 Client will not copy, use, modify, or distribute any Service Provider Intellectual Property except as expressly licensed in this Agreement. Client will not remove the Service Provider Intellectual Property from any deliverables or cause or permit the modification, distribution, reverse engineering, decompilation, disassembly or other translation of the Service Provider Intellectual Property. Client will not alter, change, or remove from the Service Provider Intellectual Property any identification, including copyright and trademark notices, and further agrees to place all such markings on any copies thereof.

9. NETWORK ABUSE

9.1 Client expressly grants Inter-Quest permission to remove or restrict access to obscene, indecent, or offensive content made available by a network user or over the Internet, and shall not hold Inter-Quest liable for any action taken to restrict access to material made available in violation of any law, regulation, or rights of a third party, including, but not limited to, rights under copyright law and prohibitions on libel, slander, and invasion of privacy.

10. SOFTWARE LICENSE 

10.1 Services provided by Inter-Quest may require software provided by Inter-Quest and/or third parties. All such software is licensed to Client subject to the terms and conditions of an end user license agreement (“EULA”) which is typically provided as either a document accompanying such software or electronically during initial use of such software. Client represents to Inter-Quest that it will abide by the terms and conditions of the EULA associated with any such software.

11. MULTIPLE OR DIFFERENT CLIENT/USER PARTIES

11.1 “Client Affiliate” means any entity that (i) is a direct or indirect parent, subsidiary, or stockholder of Client; (ii) has at least one executive officer, director, or equity owner who is also an executive officer, director, or equity owner of Client; or (iii) shares any office space, personnel, or equipment with Client. If any Client Affiliate receives, uses, or shares the use of any software, hardware, systems, or other goods installed, provided, sold, or serviced by Inter-Quest, then Client stipulates that Client has signed and agreed to be bound by this Contract both on its own behalf and as authorized agent with actual authority for such Client Affiliate. If Client Affiliate receives, uses, or shares the use of any software, hardware, systems, or other goods installed, provided, sold, or serviced by Inter-Quest, then such Client Affiliate is jointly and severally liable for all obligations of Client.

12. FORCE MAJEURE

12.1 Neither Party shall have liability to responsibility to the other Party for any delay, failure to perform, damage, malfunction, or any consequence thereof or damage resulting therefrom, due to any circumstance beyond the Party’s reasonable control, including, but not limited to: acts of nature; strikes; civil disturbances; terrorist acts; unavailability of goods or services from third parties; interruption or delay in delivery, transportation, telecommunications, or electrical services; failure of third-party hardware or software; or acts or omissions of third parties.

13. HIRING OF EMPLOYEES; LIQUIDATED DAMAGES

13.1 Neither during the Term of the Contract, nor for the period of two (2) years after its termination, will Client knowingly solicit or hire as an employee or engage as a contractor, whether part-time or full-time, any person who then is or at any time in the preceding two-year period was an employee of Inter-Quest. Client stipulates and admits that hiring or engagement of any employee or former employee of Inter-Quest is likely to cause irreparable damage to Inter-Quest that would be difficult to impossible to ascertain or prove and for which the amount of damages would be difficult or impossible to prove. Accordingly, Client agrees that any breach of this paragraph shall obligate Client to pay to Inter-Quest on demand, as liquidated damages, an amount equal to 100% of that employee’s most recent annual salary. Client again agrees that this provision is fair and not excessive.

14. BILLING DISPUTES

14.1 Client shall have the right to reasonably dispute any of the charges contained in an invoice for a period of thirty (30 days after the date of the invoice (the “Reconciliation Date”), provided that:

(i) Inter-Quest receives payment in full for all non-disputed charges on or before the Due Date of such payment, (ii) Client presents a written statement of the purported billing discrepancies to Inter-Quest in reasonable detail on or before the Reconciliation Date, and (iii) Client negotiates in good faith with Inter-Quest for the purpose of resolving said “Billing Dispute”. Inter-Quest will not be obligated to consider any Client notice of any Billing Disputes which are received by Inter-Quest after the Reconciliation Date.

15. DEFAULT

15.1 In the event Client fails to make payment by its due date, not including any amounts which may be in a Billing Dispute, Client shall be in material default of this Contract. If payment is not received within fifteen (15) days after due date, Inter-Quest will notify Client of past-due status and allow Client five (5) additional days to bring account current. If, after the additional grace period, Client remains in default, Inter-Quest shall be entitled to any one or all of the following remedies: a) Inter-Quest may immediately suspend Services to Client; b) all amounts due under this Contract and the associated Addenda or Schedule(s) shall be accelerated and become immediately due and payable; and/or c) Inter-Quest may terminate any Associated Document(s).

16. DISPUTE RESOLUTION

16.1 Any controversy or claim related directly or indirectly to this Contract or any Associated Document (“Dispute”) shall be resolved in accordance with the terms of this section.

16.2 If the Dispute cannot be settled by good-faith negotiation between the Parties, both Parties will submit the Dispute to nonbinding mediation. If complete agreement cannot be reached within thirty (30) days of submission to mediation, any remaining issues will be resolved, at Inter-Quest’s election, by binding arbitration in accordance with The Federal Arbitration Act, 9 U.S.C. §1-15, as amended, which, in conjunction with state law, will govern the arbitrability of all disputes.

16.3 A single arbitrator who is knowledgeable in the IT business and commercial matters will conduct the arbitration. The arbitrator’s decision and award will be final and binding and may be entered in any court with jurisdiction. The arbitrator will not have authority to modify or expand any of the provisions of this Contract (e.g., the Exclusive Remedies and Limitation of Liability provisions of this Contract).

16.4 Any mediation or arbitration commenced pursuant to this Contract will be conducted under the then-current rules of the alternate dispute resolution (ADR) firm selected by Contract of the Parties, subject to any expedited resolution procedure. If the Parties are unable to agree on an ADR firm, the Parties will conduct the mediation and, if necessary, the arbitration under the then-current rules and supervision of the American Arbitration Association (AAA). Each Party will bear its own attorney’s fees associated with the mediation and, if necessary, for half of the expenses of arbitration. 16.5 In the event of litigation relating to the subject matter of this Contract, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney’s fees and costs.

17. MISCELLANEOUS PROVISIONS

17.1 Limitation on Actions Any dispute Client has against Inter-Quest with respect to this Contract, any Associated Document, or the services rendered thereof, must be brought within two (2) years after the cause of action arises, and will otherwise constitute a waiver thereof.

17.2 Severability If any provision of this Contract is judicially held to be unenforceable, illegal, or invalid, then such provision shall be deemed modified to the minimum extent necessary to render it enforceable, legal, or valid, as applicable, or, if such modification is not possible, then such provision shall be deleted, with the rest of this Contract continuing in full force and effect.

17.3 Venue; Jurisdiction; Governing Law Venue and jurisdiction for the purpose of any litigation regarding this Contract shall live exclusively in Dodge County, Wisconsin. This Contract shall be governed by the laws of Wisconsin, without regard to conflict of law rules.

17.4 Entire Agreement This Contract and any Associated Document(s) represent the entire agreement between the Parties and supersede all prior agreements, understandings, and representations, whether written or oral, and may be amended or replaced only as described in paragraph 1.6.1.

17.5 Representation and Authority Each Authorized Representative signing below represents and warrants to the other Party that s/he has full corporate power and authority to execute this Contract and to bind her/his company to the terms of this Contract.

17.6 Security of Interest In the event of Client’s bankruptcy, this Contract grants Inter-Quest a specified first security interest in any remaining assets up to and including the value of this Contract, including any Associated Document(s) appurtenant hereto.

17.7 Assignment The Parties may not assign this Contract or any right or obligation of this Contract, by operation of law or otherwise, without first providing thirty (30) days’ notice to the other Party. Client must obtain written approval from Service Provider before any assignment of any right or obligation of this Contract. Any assignment without prior written approval by Service Provider shall authorize Service Provider, in its sole discretion, to immediately terminate this Contract and subject Client to fees, immediately due, including but not limited to Early Cancellation Fees, as outlined in this Contract.

18. INDEMNIFICATION

18.1 Scope Each Party agrees to indemnify and defend the other Party against any claim or action brought by any third party for actual or alleged infringement of any United States patent, copyright, trademark, or trade secret based upon: a) in the case of Inter-Quest indemnifying, Client’s right to use any Software or Third-Party Materials in accordance with the Contract (or applicable Associated Document(s)), and b) in the case of Client indemnifying, Client’s use of the Services, Software, or ThirdParty materials in violation of this Contract (or applicable Associated Document(s)). The indemnifying Party shall pay any damages and costs, including reasonable attorney’s fees, finally awarded and/or paid in settlement and/or incurred in the defense of such claim or action by the indemnified Party. The indemnifying Party shall have the sole right to conduct the defense of any claim or action and all negotiations for its settlement, unless the Parties to this Contract agree otherwise in writing.

18.2 Exclusions Inter-Quest and Client shall have no obligation under this Contract with respect to any claim or action against the other that is based upon: a) use of any Software in breach of this Contract; b) use of any Software with any product, software, or system not provided or approved by InterQuest; or c) modification of any Software without the written approval of Inter-Quest.

18.3 Alternatives The indemnifying Party shall not be responsible for any settlement entered into without its consent. In the event of a claim or action under this section, where Inter-Quest is the indemnifying Party, Inter-Quest may, in its sole discretion: a) procure for Client the right to continue using the Software; b) provided a substitute, non-infringing Software at no cost to Client; or c) only if Inter-Quest has exhausted both (a) and (b), refund any prepaid fees, as determined by Inter-Quest, directly associated with the use of such Software for the time period when the Software is unavailable to Client.

19. NOTIFICATIONS (WRITTEN NOTICE)

19.1 Notice Any notice or communication required be given hereunder must be delivered by U.S. Mail registered or certified return receipt requested, or by an overnight courier, in each case to the designated person and address as set forth in Authorizations (below). Such notice will be deemed to have been given as of the date delivered.

20. LABOR AND PRODUCTS

20.1 DEFINITIONS

20.1.1 Labor is defined as any service that Inter-Quest delivers or otherwise provides to Client that is not covered under other Addenda to the Terms and Conditions Contract.

20.1.2 Products are defined as any hardware, software, or other tangible or intangible assets are not manufactured by Inter-Quest but that Inter-Quest may sell, resell, or otherwise transfer or license to Client on behalf of its manufacturer or publisher.

20.1.3 The parts of this section specifically related to Labor are detailed in paragraphs 20.3, 20.4, and 20.8, and are applicable only to Clients who order Labor from Inter-Quest. The parts of this section specifically related to Products are detailed in paragraphs 20.5, 20.6, 20.7, and 20.8, and are applicable only to Clients who order Products from Inter-Quest.

20.2 CLIENT PASSWORDS AND DOCUMENTATION

20.2.1 Inter-Quest does not manage or maintain any Client passwords or other documentation under this section. Client is solely responsible for maintaining and managing passwords as well as any or all other documentation.

20.3 SERVICES

20.3.1 The services that Inter-Quest will deliver under this section will consist of IT professional services. Inter-Quest will, whenever possible, assign personnel known to possess the necessary knowledge, skills, or certifications to properly complete the necessary tasks per an associated Schedule.

20.3.2 Inter-Quest may provide its services on-site, at Client’s offices or other location where Client’s IT infrastructure exist, or by way of remote services, without being physically present at a Client’s site.

20.4 PRICING

20.4.1 Inter-Quest may quote labor as a fixed rate under a Project Schedule. In the event that the scope of the project change, a Change Order, approved by Client, will be required.

20.4.2 When a fixed rate is not quoted, Inter-Quest will exercise best efforts to provide Client with estimated charges. Client understands, however, that the hours or dollar amounts quoted are only an estimate and Client will be billed for actual hours spent in delivering the services described in the Project Schedule. Inter-Quest will also exercise best efforts in notifying Client if service hours are excessively exceeding the original estimate.

20.4.3 Client understands that Inter-Quest bases its prices on pre-paid labor and timely payments by Client. Labor that is not pre-paid or payments that are not delivered to Inter-Quest in a timely manner could result in the removal of discounts or other considerations, which could result in higher billing.

20.5 SALES ORDER

20.5.1 Unless otherwise stated on the Sales Order, prices quoted are only valid for 15 days and product deliveries are subject to availability.

20.5.2 Whether or not it is specifically stated anywhere, Inter-Quest may, at its sole discretion, require a deposit from Client before placing any order for Products.

20.5.3 Inter-Quest’s regular policy is to invoice for Products before placing the order with the third-party supplier, unless otherwise agreed upon by the Parties. Products may not be ordered from the supplier until the invoice has been paid, thereby delaying shipment and delivery.

20.6 SHIPPING

20.6.1 All orders are FOB Shipping Point and Client is responsible for all associated shipping and handling charges.

20.7 RETURNS

20.7.1 All returns must have a Return Merchandise Authorization (RMA) number. RMA numbers can be obtained by contacting Inter-Quest’s Purchasing Department at (920) 885-0141.

20.7.2 Inter-Quest reserves the right to assess a restocking charge on non-defective returns.

20.7.3 All returns must be in “like new” condition, in the original packaging, including all manuals, etc. Inter-Quest reserves the right to refuse a return which is not in this condition.

20.7.4 Inter-Quest reserves the right to refuse Products for return. Certain items such as software, special orders, client-specified items, and discontinued products are sold “AS IS” and cannot be returned.

20.8 LIMITATIONS

20.8.1 Other than a fixed-rate project schedule, Client understands and agrees that Inter-Quest only sells time, on a best efforts basis, to complete any specific tasks under this section or its related Schedule(s) without any promises or guarantees of any specific result or outcome. Client is therefore responsible for, and agrees to pay, any and all charges associated with Labor provided to Client, regardless of result or outcome.

20.8.2 Client understands that although Inter-Quest will exercise best efforts in safeguarding Client’s data and may perform backups of Client’s data as an initial part of the Services, Client is solely responsible for maintaining current backups of all data before any Services are performed, and, with the exception of gross negligence or willful intent to cause damage, in no event will Client hold Inter-Quest liable for any special, indirect, punitive, consequential, or incidental damages, including without limitation, any lost profits, or damage to or loss of any records or data, except as set forth in the Terms and Conditions Contract.

20.8.3 Client understands and acknowledges the limitations set forth in section 4 of this Contract, which discusses Inter-Quest’s liability as a reseller of “third-party goods and services”.

20.9 EXCLUDED SERVICES

Monthly Fees explicitly do not cover the following goods and/or services: a) Parts, equipment, or software not covered by vendor/manufacturer warranty or support; b) The cost of any parts, equipment, or shipping charges of any kind; c) The cost of any software, licensing, or software renewal or upgrade fees of any kind; d) The cost of any third-party vendor or manufacturer support or incident fees of any kind; e) The cost to bring Client’s environment up to minimum standards required for Services; f) Failure due to force majeure, building modifications, power failures, or other adverse environmental conditions or factors; g) Service and repair made necessary by the alteration or modification of equipment other than that authorized by Service Provider, including alterations, software installations or modifications of equipment made by Client’s employees or anyone other than Service Provider.

21. OTHER DEFINITIONS 

21.1 “User” or “Users” shall mean an actual person who uses the IT infrastructure/environment maintained by the Client. A User is not necessarily an employee of the Client. A User may also be an independent contractor, vendor, or other third party who uses the Client’s IT infrastructure/environment.

21.2 “Workstation” shall mean one individual personal computer. A workstation is considered to include one mobile device.

21.3 “Server” shall mean a certain type of computer that manages access to a centralized resource or other service. Servers are not necessarily physical in nature, so many Servers may reside inside one physical device, which may or may not be located on the Client’s premises. Examples of servers that Inter-Quest may manage on behalf of the Client include individual physical servers, virtualized servers, and/or cloud-based servers.

21.4 “Network” or “Local Area Network” shall mean a virtual community of shared devices in one physical location that allows the devices to share information. One example of a network is a group of ten computers all equipped to print on the same printer. A Network may be controlled or administered through various methods, including, but not limited to, a router and/or a switcher.

21.5 “Monthly Fees” shall be an amount that Client shall pay to Inter-Quest each month. The Monthly Fees are calculated based on factors agreed upon by the Parties, such as the number of Users and/or Devices in use by the Client, the number and types of Servers, the number of physical locations managed by Inter-Quest for the Client, and/or the nature and difficulty of the Services required by the Client. By agreement of the Parties, Monthly Fees may be automatically debited from Client’s bank account or charged to Client’s credit card. An invoice for each debit/charge will accompany the actual debit/charge.

21.6 “Support and Maintenance Services” or “Support Services” shall mean all of the services described on the Service Agreement. Support Services generally means troubleshooting specific requests from the Client. Support Services are provided to Client with a response time correlated to the urgency of the request. Some Support Services, when requested in substantial amounts, may be treated as Project Services. Examples include, but are not limited to, Client requesting that Inter-Quest install many workstations on the same day or short time interval, or onboard several Users in the same day or short time interval. In these situations, Inter-Quest reserves the right to treat the work requested as Project Services, and to be compensated as indicated herein. Inter-Quest may, at its sole discretion, waive this right, or reduce the rate to be charged.

21.7 “Monitoring Services” shall mean proactive alert monitoring of all critical IT infrastructure, as deemed by Inter-Quest.

21.8 “Project Services” shall mean the types of services described on the Service Schedule. Project Services generally means IT work requested by Client that is outside the scope of either Support Services or Monitoring Services. Project Services are billed according to the agreement of the parties, and subject to the same provisions, terms, conditions, and specifications detailed in the Terms and Conditions Contract.

22. SUITABILITY AND ELIGIBILITY OF EXISTING ENVIRONMENT

In order for Client’s existing environment to qualify for Inter-Quest’s Managed Services, the following requirements must be met: a) All Servers with Microsoft Windows Operating Systems must be running Windows 2008 Server or later, and have all of the latest Microsoft Service Packs and Critical Updates installed. b) All Desktop PCs and Notebooks/Laptops with Microsoft Windows Operating Systems must be running Windows Vista Pro or later, and have all of the latest Microsoft Service Packs and Critical Updates installed. c) All Server and Desktop Software must be genuine, licensed, and vendor-supported. d) The environment must have a currently-licensed, up-to-date, vendor-supported, and server-based antivirus solution protecting all servers, desktops, notebooks/laptops, and email accounts. e) The environment must have a currently-licensed and vendor-supported hardware firewall between the internal network and the Internet. f) All wireless data traffic in the environment must be securely encrypted. Costs required to bring Client’s environment up to these minimum standards are not included in this Addendum or Service Schedule. The labor required to bring Client’s environment up to these Minimum Standards will be treated as Project Services, as defined herein.

Client has a continuing obligation to maintain a suitable existing environment. Client will indemnify and hold harmless Service Provider against all damages and expenses it may incur, including reasonable attorney’s fees, related to Client’s providing infringing materials to Service Provider.

23. OTHER CLIENT RESPONSIBILITIES

23.1 Client will identify one individual to be Service Provider’s primary Client Contact and another individual to be the Secondary Contact, and will identify those individuals on the Service Agreement. Client represents that these individuals have authorization to make decisions on behalf of Client and may be relied upon by Service Provider when providing Services.

23.2 Client agrees to timely furnish, at its own expense, all personnel, necessary computer hardware/software/other materials, and an appropriate and safe work environment for Service Provider’s performance of Services. Client shall provide Service Provider with access to all information, passwords, and facilities requested by Service Provider that are necessary for performance of Services. If Client denies access to any information, passwords, or facilities, Client understands that Service Provider may be unable to perform their duties adequately, and if such a situation should occur, Client shall hold Service Provider harmless.

23.3 Client shall provide a suitable working environment for any equipment located at Client’s facility. Such an environment includes, but is not limited to, the appropriate temperature, static electricity and humidity controls, and properly conditioned electrical supply for each piece of equipment. Client shall bear the risk of loss of any equipment located at Client’s facility.

23.4 Client acknowledges that from time to time Service Provider may identify additional items that may need to be purchased by Client, and that changes to Client’s systems may be required in order for Service Provider to meet Client’s work requirements. Client agrees to work in good faith with Service Provider to effectuate such purchases or changes. In the event that Service Provider is required to purchase any assets, including computer hardware and/or software, in connection with Service Provider’s performance of Services, all such assets will remain the sole property of Service Provider unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness, and workmanship of any item or service furnished by Client, and for ensuring that the materials provided to Service Provider do not infringe on or violate the rights of any third party