Terms of Service
TERMS OF SERVICE
These Terms of Service (this “Agreement”) between FMR Consulting, LLC, a Texas limited liability company (“Fluid IT Services”), and you ("Customer") governs the provision of Fluid IT Services’ technology support services (collectively, the “Services”). This Agreement is effective immediately when Customer (a) signs up for the Services through Fluid IT Services’ website or (b) establishes a support services account with Fluid IT Services or uses the Services or any part thereof (the “Effective Date”). Fluid IT Services may revise the Agreement from time to time by posting a new version on the Fluid IT Services website. Such revised terms will become effective thirty (30) days after the posted or revised date (the “Notice Date”). Any revisions to this Agreement that relate to fees for Services, shall be applied at any time by posting the new fees on the website or providing notice to you via ticket, invoice or any other reasonable means whether it be through email or mail. Fee increases will not be applied to your Services purchased prior to the time of the fee increase until at least thirty (30) days after the date the new fees are first published, but any new Services you purchase after a fee increase will be charged at the increased fee rate. Continued use of the Services after the Notice Date constitutes acceptance of the revisions to this Agreement.
1. The Services This Agreement provides only for Fluid IT Services to provide Customer with technology services and only during the term set forth in Customer’s Order Form agreements.
1.2 Service Level Agreement (“SLA”) Managed support plan (“MSP”) services will have the following service levels -
Helpdesk Tickets - SLA
- Ticket Response -- 2 Hours -- during normal hours of operation - Mon-Fri 7:30am - 5:30pm. Tickets submitted after 3:30pm, after hours, weekends and Holidays are 'Next Business Day' SLA response.
- Ticket Resolution - Best Effort.
911 Emergencies & After Hours (24x7x365)
- Severity Level 3 (Full Outage) -- 15 Minute SLA response & 1 hour status updates
- Severity Level 2 (Partial Outage) -- 30 Minute SLA response & 2 hour status updates
- Severity Level 1 (single user issue) -- Next business day SLA response and status updates are provided as best effort or as updates occur.
(a) All recurring charges shall be due and payable in advance, without offset, deduction or prior demand on or before the first (1st) day of the month for the Services provided during that month, or for the predetermined period, whichever may apply. Invoices or notices of invoices for recurring charges are issued upon written request as a courtesy.
(b) Non-recurring charges including tech support, excess bandwidth usage and overages or purchases of equipment or supplies, will be due and payable upon Customer’s receipt of invoice or notice of invoice.
(c) Credit card payments for recurring charges will be processed on the first business day of the month; payments for non-recurring charges will be processed within ten (10) days of issuance of invoice or notice of invoice. Customers paying by credit card are responsible for maintaining a valid credit card on file with Fluid IT Services. Fluid IT Services may immediately interrupt service in the event a charge is denied.
(d) Payments by check, wire transfer or any other payment method must be received on or before the due date or Fluid IT Services may immediately interrupt Service. A returned check will constitute a material breach of this Agreement, and Customer will incur a $35.00 returned check fee, in addition to any other remedies available to Fluid IT Services.
(e) Delivery of the Services on a Specialty Basis. In the event Fluid IT Services reasonably determines that Services are required on a specialty basis or that require highly skilled or technical specialists, Fluid IT Services may provide such services without the consent of Customer, and thereafter provide notice of the services to Customer and bill Customer a reasonable fee for such services, which shall have a net 15 term with late fees and interruption of services assessed as more particularly described herein. Customer agrees to pay Fluid IT Services the fees charged by Fluid IT Services for the Services required on a specialty basis. Any Services performed after interruption of Services, shall be for resets and one password reset per Customer. Specialty Basis services may be pre-purchased as agreed to by and between Customer and Fluid IT Services.
Interruption of the Services may include denial of tech support. Customers whose Services are interrupted for non-payment will pay [in addition to paying all past due amounts] a $25.00 charge before Services are restored. If Customer fails to pay amounts invoiced by Fluid IT Services within thirty (30) days of the invoice date, all such unpaid amounts shall accrue interest from the invoice date at the lesser of one and one half percent (1½%) per month or the maximum rate allowed by law. Fees or charges for any fractional portion of a month shall be computed as one thirtieth (1/30) of the basic monthly payment multiplied by the appropriate number of days. Service interruption is subject to a $10.00 reactivation fee per Customer. All Services rendered by Fluid IT Services are not eligible for a refund. All overcharges or charge disputes must be reported within fifteen (15) days of the date the dispute occurred. Any Credits are nonrefundable.
(f) The prices listed in the Order Forms may be increased by up to five percent (5%) per annum during the Initial Term indicated in the Order Forms and any Renewal Term thereof to cover increased costs associated with operations.
3. Disclaimers and Warranties
(a) Fluid IT Services will not be liable for any consequential, incidental, exemplary, punitive, or multiple damages, even if Fluid IT Services was advised in advance of the possibility of such damages. Fluid IT Services’ maximum liability arising out of or related to this Agreement will not exceed the total amount of fees billed to customer during the twelve (12) month period preceding the claim.
(b) Fluid IT Services shall not insure or be responsible for any loss or damage to property of any kind owned or leased by Customer except to the extent such liability results from Fluid IT Services gross negligence or willful misconduct.
(c) Fluid IT Services’ limitations and exclusions of liability set forth in this Section 3 and in this Agreement apply equally to Fluid IT Services’ officers, employees, mangers, members, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies.
4. Indemnity & Third Party Claims
(a) Customer will defend and indemnify Fluid IT Services, its officers, employees, managers, members, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies from any third party claim arising out of or related to: (i) alleged Customer conduct that would breach this Agreement, including without limitation willful infringement of third party intellectual property or privacy rights; (ii) Customer’s use, misuse, or failure to use the Service; and (iii) any action taken by Fluid IT Services as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys’ fees.
5. Term and Termination
(a) This Agreement will continue from the Effective Date through that period affirmed at signup subject to the following terms and conditions:
(i) Service may be terminated by Customer upon sixty (60) days’ notice, with the following provisions:
(1) In the event service is terminated by Customer in accordance with provisions of this section, Customer will be liable for a Cancellation Fee equal to the monthly service fee times the prorated days remaining in the service period, unless otherwise specified in the Customer's Order Form. For example, Microsoft Office 365 service fees will be liable for a Cancellation Fee equal to the monthly service fee times the months remaining in the service period, Security as a Service service fees will be liable for a Cancellation Fee equal to the monthly service fee times the months remaining in the service period, Fluid Cloud service fees will be liable for a Cancellation Fee equal to the monthly service fee times the months remaining in the service period..
(2) The Cancellation Fee will be due immediately upon receipt of written notice. The Cancellation Fee will be payable in the same manner as the monthly recurring charges,
(3) The cancellation of service will become effective upon payment of the Cancellation Fee.
(ii) The Services renew for successive periods equal to the period affirmed at signup unless written notification is received from Customer by Fluid IT Services at least sixty (60) days prior to the end date of the applicable service period.
(b) Customer’s notice of termination must be submitted in writing.
(iii) Service may be terminated by Fluid IT Services upon sixty (60) days’ notice at any time.
6. General Provisions
(a) This Agreement constitutes the entire Agreement between Fluid IT Services and Customer pertaining to the subject matter, and supersedes any prior Agreements, whether written or oral.
(b) Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement, due to any cause beyond is reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
(c) Fluid IT Services and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Fluid IT Services and Customer. Neither Fluid IT Services nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided in this Agreement.
(d) Fluid IT Services and Customer warrant that their respective undertakings will be performed in a professional and workmanlike manner in accordance with this Agreement. FLUID IT SERVICES MAKES NO OTHER WARRANTY UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR GUARANTEES OF TIMES TO RESPOND TO SERVICE ISSUES OR REPAIR SERVICE ISSUES.
(e) This Agreement shall be governed by and construed under the substantive laws of the State of Texas. Jurisdiction and venue for purposes of any litigation in connection herewith shall be in Collin County, Texas. In the event of litigation hereunder, the prevailing party shall be entitled to an award of reasonable attorney's fees and court costs at all trial and appellate court levels.
(f) All written communications to Customer will be deemed delivered if sent to the contact information provided to Fluid IT Services at the time of signup, unless Customer provides some alternate contact information in writing. All written communications to FMR Consulting, LLC d/b/a Fluid IT Services and all charges will be mailed to 5151 Headquarters Drive, Suite 170, Plano, Texas 75024, unless Fluid IT Services posts alternate contact information at its website.