IMPORTANT – READ CAREFULLY. THESE TERMS OF SERVICE SET FORTH A LEGAL AGREEMENT BETWEEN YOU AND MODERN MANAGED IT. BY SUBMITTING AN ORDER, CLICKING ACCEPT OR AGREE WHEN THESE TERMS OF SERVICE ARE MADE AVAILABLE TO YOU, OR USING ANY OF THE SERVICES (WHICHEVER IS FIRST TO OCCUR), YOU ACCEPT AND AGREE TO BOUND BY THESE TERMS OF SERVICE.
These Modern Managed IT Terms of Service (“Terms of Service”) are between Modern Managed IT, LLC, a Delaware limited liability company (“Modern Managed IT”, “we”, “us” or similar terms), and the customer who orders any Services ( “Customer”, “you” or similar terms).
THE AGREEMENT. Your use of the Services is governed by these Terms of Service, any applicable Service-Specific Terms, the Modern Managed IT Acceptable Use Policy, the terms of your Order, and any documents incorporated by reference in any of these. When we use the term “Agreement” in any of the Order, Terms of Service, Service-Specific Terms, or Acceptable Use Policy, we are referring collectively to all of them, and to any other documents that may be incorporated by reference in any of them. If the individual who accepts these Terms of Service or submits an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. This Agreement is the complete and exclusive agreement between you and Modern Managed IT regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
1. DEFINED TERMS. Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Modern Managed IT Acceptable Use Policy posted at https://www.modernmanagedit.com/aup as of the date of our acceptance of the Order.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Modern Managed IT, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Customer Data” means all files, content, code, text, audio, video, images, materials and other data that you provide to us for processing through your use of the Services.
“Software” means any software that we may provide to you as part of the Services, including any updates, bug fixes, and successor versions or revisions that we may provide to you from time to time to supplement or replace any of the foregoing.
“Order” means either: (i) the online purchase order for the Services that you submit to Modern Managed IT via Modern Managed IT’s online ordering process and that is accepted by Modern Managed IT, or (ii) any other written order (either in electronic or paper form) provided to you by Modern Managed IT for signature that describes the Services you are purchasing, and that is signed by you (either manually or electronically) and that is accepted by Modern Managed IT.
“Services” means those services described in the Order to be provided by us (including, as applicable, the right to use the Software and any other services (including the use of any hardware) described in the Order to be provided by us), and any features, functionality, or offerings made available by us as part of those services, plus such support for those services as Modern Managed IT makes available to you.
“Service-Specific Terms” means any additional terms and conditions that are provided by us and apply to a specific Service(s). Any Service-Specific Terms will be referenced in the Order for the applicable Service(s) or disclosed to you in connection with the applicable Service(s) (e.g., as a condition to your download of or access to Software), and will apply to your use of such Service(s) in addition to these Terms of Service. In the event of a conflict, the Service-Specific Terms will take precedence over these Terms of Service.
2. SERVICES. Contingent on Modern Managed IT’s acceptance of your Order, and subject to the terms of the Agreement, you may use the Services described in an Order for the term of the Order. The Services are made available to you for use on a limited license or access basis, and, notwithstanding the use of terms such as “purchase” or “sale”, you will not acquire ownership of any right, title or interest in or to the Services or any portion thereof.
3. WHO MAY USE THE SERVICES. Only you and/or your employees or other agents may use the Services. You may not resell the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
4. CUSTOMER DATA. As between you and us, you will retain exclusive ownership of your Customer Data. You hereby grant to Modern Managed IT a non-exclusive, sub-licensable, royalty-free license to reproduce, distribute, modify, prepare derivative works of and otherwise use the Customer Data for the limited purpose of providing the Services and otherwise performing under this Agreement. You warrant that you have all necessary rights in the Customer Data to use (and to grant us the right to use under the license above) the Customer Data, and that the Customer Data (including the use thereof in connection with the Services) will not violate, misappropriate or infringe the rights (including intellectual property rights) of any person or violate any applicable laws.
You are solely responsible for your Customer Data, including determining the suitability of the Services in light of the type of Customer Data stored and/or processed through your use of the Services and designating authorized users under your account with access to Customer Data through your use of the Services.
If we or our service providers are legally required to permit any relevant governmental authority to inspect or otherwise access your Customer Data or usage of the Services, you agree that we and our service providers can do so. Where reasonably possible without breaching any legal or regulatory requirement, we will provide you with prior notice of any such access or inspection.
5. LICENSE TERMS AND CONDITIONS FOR JUNGLE DISK SOFTWARE. The Software is licensed and not sold. You may use only the machine readable version of the Software furnished to you and only in connection with your use of the Services made available through the Software. Subject to any Service-Specific Terms applicable to the Software, the following terms and conditions apply to the Software:
5.1 Per User. You may authorize use of the Software only by that number of users stated in your Order. Each user must be an individual, natural person, and not a business entity or organization.
5.2 Per Device. You may use the Software only on those devices that are stated in your Order or on which we install the Software.
5.3 Other License Terms and Conditions. You may use any documentation included with the Software or otherwise provided to you by Modern Managed IT, such as Help Files and FAQ, only in connection with your use of the Software. You may not copy the documentation except as reasonably incident to your use of the Software as permitted by this Agreement. You may not assign, sublicense or transfer the Software, any documentation, or the license for the Software or documentation. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on the Software or documentation. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble the Software except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to Modern Managed IT. You must promptly begin using any updated version or new version of the Software that Modern Managed IT provides, and you may not use any prior version after the time that the new or updated version is installed. Modern Managed IT may revoke or terminate this license at any time without liability. Upon the termination of the license with respect to Software (which in any event shall occur automatically upon the termination or expiration of the term of the applicable Order), all rights granted to you with respect to the Software will terminate automatically and you will promptly uninstall, delete and cease further use of the Software. You may not use the Services or the Software in any nuclear, aviation, mass transit or medical application or in any other inherently dangerous applications. You acknowledge that the Software may include a reporting feature that will report usage information (but not the content of your Customer Data) to Modern Managed IT via the Internet. Modern Managed IT will use this information only for the purpose of providing the Services and verifying your compliance with the terms of this Agreement. Modern Managed IT retains all rights in the Software except for the rights expressly granted in this Section. Restricted Rights: If the Services are paid for with United States federal government funds or are intended for use within or for any United States federal agency, the Software is provided with “Restricted Rights” as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data-General, including Alternate III, as applicable. You must notify Modern Managed IT in advance if you are a federal government entity or are using federal government funds to pay for your use of the Service.
6. YOUR OBLIGATIONS. You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy, (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services (iv) cooperate with Modern Managed IT’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information accurate and up to date; and (vi) immediately notify Modern Managed IT of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the Acceptable Use Policy, Modern Managed IT’s reasonable determination shall control.
7. TERM. The initial term for each Order begins on the date we make the Services described in the Order available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month, unless you terminate via our online account closing process, or we provide a written notice of non-renewal, both of which require at least thirty (30) days prior notice to the expiration of the initial term, or then-current renewal term, as applicable.
8. FEES. You agree to pay Modern Managed IT the recurring and non-recurring fees described in your Order. Unless otherwise agreed in the Order, Modern Managed IT will charge your credit card without invoice as follows: (i) for recurring fees, either in advance on or around the first day of each billing cycle, or, at Modern Managed IT’s option, in arrears with your non-recurring fees; (ii) for non-recurring fees (such as storage), and for any additional fees due for failure to meet the monthly minimum charge, on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Modern Managed IT’s option. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Modern Managed IT first makes the Services available to you. Each customer account is subject to a minimum monthly charge in the amount stated in the Order or, if not stated in the Order, then on our then-current list of fees on our website. If the total aggregate fees charged for all Services provided by Modern Managed IT to your account in a particular monthly billing period are less than the minimum monthly charge, then you will pay to us an additional fee equal to the difference between the total aggregate fees charged and the minimum monthly charge. Modern Managed IT may suspend all any or all Services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if charges to your credit card are rejected or charged back for any reason. Modern Managed IT may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days and Modern Managed IT brings a legal action to collect, you must also pay Modern Managed IT’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Modern Managed IT with accurate factual information to help Modern Managed IT determine if any tax is due with respect to the provision of the Services and if Modern Managed IT is required by law to collect taxes on the provision of the Services, you must pay Modern Managed IT the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. Modern Managed IT may, at its option, require you to make payments through a third party billing service or distributor.
9. FEE INCREASES. Unless otherwise agreed in the Order, we may increase fees for the Services at any time by posting the new fees on our website or giving you notice of the increase at least forty five (45) days in advance of the fee increase.
10. SUSPENSION. We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, or (iv) as required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Modern Managed IT or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
11. TERMINATION FOR CONVENIENCE. You may terminate the Agreement for convenience at any time via our online account closing process where you are responsible for the deletion of all stored data as well as the cancellation of software license subscriptions. We will not refund any prepaid portion of the fees for the Services if you terminate for convenience, and we will charge the usage fees through the effective date of termination. We may terminate this Agreement for convenience at any time on at least thirty (30) days advance written notice.
12. TERMINATION FOR BREACH. We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, or we determine, in our reasonable discretion, that there is evidence of fraud in connection with your use of the Services, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria; (v) you use the Services in violation of the AUP, or (vi) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure. If we fail to provide the Services in breach of this Agreement, then we will refund you the fees for those Services for the period that we were in breach, provided that the refund will not exceed one month of fees for the Services.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
13. DATA BACK UPS. You agree to keep a current and reliable copy of all your stored Customer Data. Modern Managed IT has no obligation to help you recover Customer Data that you or your users delete or corrupt.
14. RESPONSIBILITY FOR USE OF THE SERVICES. You are responsible to Modern Managed IT for the violation of the Agreement by any employee or agent of yours, any other person to whom you have given access to the Services, and any person who gains access to your Customer Data or the Services as a result of your failure to use reasonable security precautions, to the same extent as if you had committed the violation yourself, even if such violation was not authorized by you. You are responsible to Modern Managed IT for any fees arising from the use of the Services by any of these persons, even if that use was not authorized by you.
15. WARRANTY DISCLAIMERS. WE (INCLUDING, FOR PURPOSES OF THIS SECTION, OUR SERVICE PROVIDERS AND LICENSORS) DO NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIM ALL, WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES (INCLUDING THE SOFTWARE), AND ANY OTHER PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR ITEMS PROVIDED, OR TO BE PROVIDED, TO CUSTOMER UNDER THIS AGREEMENT (COLLECTIVELY, THE “OFFERINGS”), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, QUIET ENJOYMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, WE DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES AND/OR GUARANTEES REGARDING (I) THE USE OF OR THE RESULTS OF THE USE OF THE OFFERINGS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY OR OTHERWISE, OR (II) WHETHER THE OFFERINGS WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED OR ERROR FREE.
16. EXPORT MATTERS. You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Modern Managed IT is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations. The Software may contain “strong encryption” that is controlled for export by United States law and the laws of other countries.
17. CONFIDENTIAL INFORMATION. Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service.
(ii) to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the Confidential Information reflects conduct that may violate applicable law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
For the avoidance of doubt, our use of Customer Data is governed by the terms and conditions set forth in Section 4 of these Terms and the provisions of this Section 17 do not operate as a warranty with respect to any Services.
18. LIMITATION ON DAMAGES.
IN NO EVENT SHALL WE (OR OUR SERVICE PROVIDERS OR LICENSORS) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF REVENUE OR PROFIT, LOSS OF DATA, OR LOSS OF TIME OR BUSINESS, ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER WE (OR ANY OF OUR SERVICE PROVIDERS OR LICENSORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ANYTHING TO THE CONTRARY NOTWITHSTANDING, OUR (INCLUDING OUR SERVICE PROVIDERS OR LICENSORS) TOTAL MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, WILL IN NO EVENT EXCEED THE GREATER OF (i) ONE HUNDRED DOLLARS ($100.00) OR (ii) THE TOTAL AMOUNT OF FEES PAID TO US BY CUSTOMER FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE THREE (3) MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH CLAIM, DAMAGE OR LIABILITY, LESS THE AMOUNT OF ALL CLAIMS, DAMAGES OR LIABILITIES PREVIOUSLY PAID BY OR ON BEHALF OF US DURING SUCH PERIOD.
19. INDEMNIFICATION. If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Modern Managed IT Indemnitees”) is faced with either: (i) a legal claim by a third party arising out of your actual or alleged negligence, willful misconduct, violation of law, breach of any representation, warranty or covenant contained in the Agreement, including any violation of the AUP or Section 16 (Export Matters) of these Terms of Service, or (ii) any legal claim by your authorized workgroup member, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the Modern Managed IT Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. We will choose legal counsel to make decisions regarding the defense of the claim, provided that these decisions must be reasonable and must be promptly communicated to you. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
20. SERVICE LEVELS. Under standard conditions, the Initial Response Time and Resolution Time mentioned below apply to low-impact or non-urgent service requests within each service offering. The associated impact or urgency will be determined by our technical staff on a case by case basis.
(i) Managed IT Services:
Managed IT Pro and Mobile Managed IT Pro:
- Operating hours: Monday through Friday, 8:00 AM to 5:00 PM CST
- Initial Response Time: 1 hour
- Resolution Time: 2 business days
- Support Channels: Phone for urgent issues, email for non-urgent issues
Managed IT Pro Plus:
- Operating hours: Monday through Friday, 8:00 AM to 6:00 PM CST, Saturday 8:00 AM to 1:00 PM CST, Sunday 8:00 AM to 12:00 PM CST
- Initial Response Time: 30 minutes
- Resolution Time: 1 business day
- Support Channels: Phone for urgent issues, email for non-urgent issues
(ii) Email and Apps Services:
- Operating hours: Monday through Friday, 8:00 AM to 5:00 PM CST
- Initial Response Time: 2 hours
- Resolution Time: 3 business days
- Support Channels: Phone for urgent issues, email for non-urgent issues
(iii) Data Backup Services (Jungle Disk):
- Operating hours: Monday through Friday, 8:00 AM to 5:00 PM CST
- Initial Response Time: 4 hours
- Resolution Time: 3 business days
- Support Channels: Email only
21. CHANGES TO THE ACCEPTABLE USE POLICY. We may change our Acceptable Use Policy provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective as to you upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or these Terms of Service, or (iii) ten (10) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than ten (10) days following the date the change became effective as to you and we will not enforce the change as to you for ten (10) days following the date of your notice.
22. NOTICES. Your routine communications regarding the Services should be sent to your Modern Managed IT account team using your Modern Managed IT support portal. If you want to give us a notice regarding termination of the Agreement for breach or other non-routine legal matter, you must give such notice in writing and send it by electronic mail and first class United States mail to:
Electronic Mail Address: legalnotice@modernmanagedit.com
Postal mail address: Modern Managed IT, LLC Attention: Legal Notice, 110 E Houston Street, Floor 7 #57, San Antonio, TX 78205
Modern Managed IT’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier. Notices are deemed received as of the time delivered, or if that time does not fall within a business day, as defined below, as of the beginning of the first business day following the time delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
23. OWNERSHIP OF INTELLECTUAL PROPERTY. Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Modern Managed IT during the performance of the Services shall belong to Modern Managed IT unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property. Anything to the contrary notwithstanding, you hereby grant to us a non-exclusive, royalty-free, perpetual, fully transferable and sub-licensable right and license to reproduce, distribute, use and otherwise exploit any suggestions, feedback or other information communicated by you to us relating to the design, specifications, features, functionality, use or operation of the Services and/or other of our offerings (whether current or proposed) (collectively, “Feedback”).
24. ASSIGNMENT/SUBCONTRACTORS. You may not assign the Agreement or sublicense the Software without Modern Managed IT’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Customer Data and Confidential Information as part of any such transaction. Modern Managed IT may use third party service providers to perform all or any part of the Services, but Modern Managed IT remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Modern Managed IT performed the Services itself.
25. FORCE MAJEURE. Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
26. GOVERNING LAW, LAWSUITS. The Agreement is governed by the laws of the State of Texas, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Bexar County, Texas, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Modern Managed IT or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
27. EVALUATION USE OF SERVICES. If Modern Managed IT authorizes your use of the Services without charge on an evaluation or trial basis, then notwithstanding anything to the contrary herein, you must stop using the Services at the end of your designated trial period or any time that Modern Managed IT revokes your trial use rights.
28. [RESERVED].
29. LOANED EQUIPMENT. (i). Any hardware or other equipment furnished by Modern Managed IT to Customer for use as part of the Services (collectively, “Equipment”) will be provided to Customer on a loaned basis for use by Customer at the Customer location specified in the applicable Order (an “Equipment Location”) for the duration of Modern Managed IT’s provision of such Services for which the Equipment was provided (or such shorter period specified in the applicable Order) (the “Equipment Service Period”) solely for enabling Customer to access and use such Services as provided by Modern Managed IT.
(ii). Modern Managed IT is and will remain the owner of, and will hold title to, the Equipment. Customer agrees: (A) to keep the Equipment free of all liens, claims and encumbrances whatsoever; (B) not to sell, lease or otherwise transfer the Equipment (or authorize or attempt to do any of the foregoing) to any third party; (C) that the Equipment will remain personal property regardless of its attachment to realty; and (D) to provide Modern Managed IT with waivers of rights and liens from any person having any interest in the Equipment Location (including any lessor or landlord) and any other person claiming (or potentially claiming) an interest in the Equipment. Customer will mark and identify the Equipment as Modern Managed IT may reasonably request from time to time to indicate Modern Managed IT’s ownership of the Equipment and replace promptly any such markings or identification which are removed, defaced or destroyed. Customer authorizes Modern Managed IT to sign and file financing statements and other notices covering the Equipment as necessary to protect Modern Managed IT’s ownership and title to the Equipment.
(iii). Customer will provide (and cause any necessary third parties to provide) Modern Managed IT and its representatives with all necessary access to the Equipment Location and the Equipment (A) to provide the Services, (B) to confirm Customer’s compliance with this Agreement and (C) to exercise Modern Managed IT’s rights under this Agreement with respect to the Equipment. Customer will not make (and will not permit any third party to make) any modifications or improvements to the Equipment without Modern Managed IT’s prior written consent. All parts, modifications and improvements to the Equipment when installed or made, immediately become the property of Modern Managed IT and part of the Equipment for all purposes. Customer will not (nor permit any third party to) relocate the Equipment from the Equipment Location without the prior written consent of Modern Managed IT, which Modern Managed IT will not unreasonably withhold.
(iv). Customer assumes and will be responsible for the entire risk of loss, theft or destruction of, or damage to, the Equipment from any and every cause whatsoever (collectively, “Loss”), whether or not insured, until the Equipment is returned to Modern Managed IT. Customer will notify Modern Managed IT immediately of any Loss, and then, at Modern Managed IT’s sole option, Customer will either (A) pay Modern Managed IT all amounts necessary to repair the Equipment so that it is in good condition and working order or (B) pay Modern Managed IT the greater of (1) $99 per item of Equipment or (2) then-current full replacement cost of the Equipment. All amounts payable by Customer under this Section 29 shall be payable on the same basis as non-recurring fees.
(v). Within thirty (30) days following the end of the Equipment Service Period, Customer will deliver (at Customer’s sole cost, expense and risk) the Equipment to Modern Managed IT at Modern Managed IT’s designated receiving location in the U.S. in the same condition as when originally delivered to the Equipment Location. If Customer fails to return the Equipment to Modern Managed IT within such 30-day period then the Equipment will be deemed lost, stolen or destroyed and Customer will pay Modern Managed IT the amounts required under Section 29(iv)(B) above for such Loss. If Customer returns the Equipment to Modern Managed IT within such 30-day period, but Modern Managed IT determines that the returned Equipment is not in the condition required, Customer will pay Modern Managed IT the amounts required under Section 29(iv) above for any Loss. When the Equipment is returned to Modern Managed IT’s possession in accordance with the above, the Equipment will be deemed returned to Modern Managed IT. In the event of Customer’s breach of any provision of this Section 29, and without limitation of any other rights and remedies available under these Terms of Service or in law or equity, Customer agrees that Modern Managed IT may (i) terminate this Agreement for breach (without regard to any otherwise applicable cure period), (ii) require Customer to return the Equipment to Modern Managed IT, or (iii) may enter the Equipment Location (with or without legal process) and repossess or disable the Equipment.
30. SOME AGREEMENT MECHANICS. If these Terms of Service are incorporated in your Order by reference to a page on the Modern Managed IT website and we revise the Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision until the first day of the renewal period that follows the effective date of the amendment by at least thirty days. However, if over time you sign multiple Orders for a single account, then the Terms of Service posted on the effective date of the latest Order will govern the entire account. Modern Managed IT may accept or reject any Order you submit in its sole discretion. Modern Managed IT’s provisioning of the Services described in an Order shall constitute Modern Managed IT’s acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Service-Specific Terms, Terms of Service, and Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 1, 14, 15, 17, 18, 19, 22, 23, 26, and 29 of these Terms of Service and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
January 3, 2024 revision
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