• GUT Consulting Terms of Service 

1. PARTIES’ RELATIONSHIP 
   • Both Parties herein expressly agree that GUT Consulting is an independent contractor and shall remain an independent contractor in its dealings with Client.  Neither Party is an agent, representative, or partner of the other Party.  Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of or incur any obligation or liability on behalf of the other Party unless specifically set forth in this Agreement.  This Agreement shall not be interpreted or construed to create an employment relationship, an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. 
2. Conditions for Service 
   • The Client IT Environment is eligible for service, monitoring, and support under an Agreement provided it is in good condition and the Service Provider’s serviceability requirements/standards as defined and site environmental conditions as defined herein are met.  
   • Minimum Standards Required for Services 
     • For Client’s existing environment to qualify for Service Provider’s Managed Services, the following requirements must be met: 
     • All Servers with Microsoft Windows Operating Systems must be running Windows 2016 Server or later and have all of the latest Microsoft Service Packs and Critical Updates installed. 
     • All Desktop PC’s and Notebooks/Laptops with Microsoft Windows Operating Systems must be running Windows 10 or later and have all of the latest Microsoft Service Packs and Critical Updates installed. 
     • All Server and Desktop Software must be Genuine, Licensed and Vendor-Supported. 
     • All Wireless data traffic in the environment must be securely encrypted. 
     • All workstation and network equipment must be newer than three (3) years old and no older than five (5) years old. Servers must be newer than five (5) years old and no older than eight (8) years old. 
        
   • The Service Provider reserves the right to suspend or terminate an Agreement if in its sole discretion, conditions at the service site pose a health or safety threat to any Service Provider representative. 
   • Coverage for existing IT Assets under the Agreement are contingent upon:  
   • The IT Assets meet the Service Provider’s serviceability standards defined in Exhibit A Detailed Coverage. 
   • For remote service, a covered IT Asset must have the Service Provider’s RMM agent installed and be remotely accessible over a reliable internet connection.     
   • The IT Asset’s physical condition, physical configuration, and/or digital configuration remains economically reasonable for service.   
3. WARRANTY 
   • GUT Consulting LLC warrants it shall provide Services and meet obligations under it’s Agreements in a timely and workman like manner, using knowledge and recommendations for performing Services which meet generally acceptable standards in the region’s industry, and will provide a standard of care equal to, or superior to, care used by Service Providers similar to GUT Consulting LLC on similar projects. 
   • Services furnished are provided “as is” and, unless otherwise expressly stated in the scope of work or agreement, without representations or warranties of any kind, either express or implied. To the fullest extent permitted by law, GUT Consulting disclaims all warranties, express, implied, or statutory, including, but not limited to, implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.  GUT Consulting does not warrant that use of software or products furnished by GUT Consulting will be uninterrupted, error-free, or secure, or that products or the server(s) to which access is provided are free of viruses or other harmful components.  
   • A GUT Consulting LLC’s contractor is a technician or contractor who operates on behalf of GUT Consulting, is paid by GUT Consulting, and has access to GUT Consulting LLC’s ticket management system for making time entries and charges for their work.  GUT Consulting LLC is not responsible for the acts of other technicians, contractors, or consultants providing service to Client not under its control and direction.  If Client purchases equipment from GUT Consulting LLC, it understands and agrees that it will look to the manufacturer for all remedies and warranties and agrees that GUT Consulting LLC is not responsible for functioning of the equipment and has not made any express or implied warranties.  GUT Consulting LLC shall not be liable for any claim or demand against the Client by any third party on account of errors or omissions performed hereunder. 
4. LIMITATION OF LIABILITY 
   • In no event shall GUT Consulting LLC be held liable for indirect, special, incidental, or consequential damages arising out of Services provided hereunder, including but not limited to, loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs.   
   • GUT Consulting shall not be responsible to Client for loss of use of the IT Environment or for any other liabilities arising from alterations, additions, adjustments, service, repairs, or maintenance which have been made to the IT Environment other than by authorized representatives of GUT Consulting. 
   • Neither Party shall be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, to the other if it breaches any of its obligations under this Agreement (or arising therefrom), for any loss suffered by the other Party in the form of lost revenue or profit or failure to achieve any benefit expected to be derived from this Agreement, loss of use of any asset, loss of data recorded on any computer or other equipment, loss which is not the direct and immediate consequence of the breach, business interruption or management time, or any other loss which is otherwise indirect, commercial, economic, special or consequential. 
   • The total liability of GUT Consulting, whether in contract, tort (including negligence), breach of statutory duty or otherwise – for any and all breaches and/or non-performance of its obligations or liability under this Agreement shall be limited to the total Fees payable by the Client. Further, if any collection action litigated or otherwise, is necessary to enforce the terms of this Agreement, GUT Consulting LLC shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which it may be entitled.   
   • Nothing shall limit or exclude either Party’s liability for death or personal injury or any other liability which cannot be excluded by law. 
   • No action, regardless of form (including in contract, tort or otherwise), arising in connection with the performance of this Agreement may be brought by either Party more than one (1) year after the date of the occurrence on which the action is based.   
5. INDEMNIFICATION 
   • Client shall indemnify and hold harmless GUT Consulting LLC and their respective officers, directors, and employees (hereinafter referred to as “Indemnitees”) from and against all liabilities, obligations, losses, damages, taxes, fines, penalties, claims, actions, suits, costs, charges and expenses, including without limitation attorneys’ fees and expenses, which may be imposed upon or incurred by or asserted against the Indemnitees, or any of them, by reason of actual or alleged (i) injury or death to persons, (ii) damage to property, or (iii) violation of any law, ordinance, or regulation of any federal, state, or local government authority as a result of or arising out of any or all of the Services provided for under this Agreement; provided, however, the foregoing agreement to Indemnify and hold GUT Consulting LLC harmless shall not be applicable to the extent that such liabilities, obligations, losses, damages, taxes, fines, penalties, claims, actions, suits, costs, charges, and expenses are attributable to the negligence of GUT Consulting LLC and/or its employees. This indemnity is not limited by workers’ compensation or other governmental acts which may limit Client’s liability to employees or others. If any of GUT Consulting LLC’s employees or agents are injured through the actions or omissions of Client, its agents, or representatives, Client shall indemnify and make whole and reimburse GUT Consulting LLC for all costs associated with the injury up to and including payment for all Workers’ Compensation premiums incurred by GUT Consulting LLC as a result of such injury.   
6. FORCE MAJEURE 
   • If the performance of any Agreement or any obligation under said Agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (the “Force Majeure”), and if the Party unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. In the event of a Force Majeure, GUT Consulting LLC is not required to have technicians work during periods or at places where their safety or health could be in jeopardy and in any event will not require technicians to go on-site.  If GUT Consulting LLC’s technicians are forced to work from home as a result of Force Majeure, Client may be responsible for any additional security and cost increases incurred as a result.  The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lockouts, work stoppages or other labor disputes, supplier failures, plaque, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party, or its employees, officers, agents, or affiliates. 
7. APPLICABLE LAW 
   • The rights, duties, and obligations of the Parties, including the applicable statute of limitations for any given claim or action, shall be construed and governed by U.S. federal law and, to the extent not in conflict therewith, by the procedural and substantive law of the State of Ohio, unless otherwise agreed upon herein. 
8. SEVERABILITY 
   • If any term or provision of this Agreement or any application thereof shall be held to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect. 
9. CONFIDENTIALITY & NON-DISCLOSURE 
   • GUT Consulting and its agents may use Client information as necessary to or consistent with providing the contracted Services. GUT Consulting LLC acknowledges that through its relationship with Client, GUT Consulting LLC may become aware of Confidential Information, as defined below, or trade secrets proprietary to Client.  GUT Consulting LLC agrees to protect and not disclose or otherwise make available Client’s Confidential Information and/or trade secrets.  GUT Consulting LLC shall take appropriate action by instruction, agreement, or otherwise with respect to GUT Consulting LLC’s employees who are permitted to access Client’s Confidential Information and trade secrets.  In order to fulfill GUT Consulting LLC’s duties and responsibilities of maintaining network security and confidentiality, administrative passwords will be retained by GUT Consulting LLC and not released to third parties without written consent from the Client.   
   • Confidential Information shall mean information, whether oral or written (including information provided in electronic format), provided by Client, or received by GUT Consulting LLC by virtue of the relationship created from this Agreement, provided that such information shall not be Confidential Information if the information provided (i) is known to the trade or public at the time of its disclosure, (ii) becomes generally available to the trade or public other than as a result of GUT Consulting LLC, (iii) was in the possession of GUT Consulting LLC in a non-confidential basis prior to its disclosure, (iv) was disclosed to GUT Consulting LLC by a third party not reasonably known by GUT Consulting LLC to be under an obligation of confidentiality, (v) was disclosed pursuant to a legal or regulatory requirement, or (vi) was disclosed with the written consent of Client. 
10. NON-COMPETE 
    • Client agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Client will not recruit or hire any employee, agent, representative or subcontractor of GUT Consulting (collectively “Personnel”), nor will the Client directly or indirectly contact or communicate with GUT Consulting’s Personnel for the purpose of soliciting or inducing such Personnel (a) to accept employment with, or perform work for any person, firm, or entity other than GUT Consulting; or (b) to provide services to the Client or any other person, firm or entity except as an employee or representative of the Client 
11. Client Responsibilities 
    • The Client will conduct business with the Service Provider in a professional and courteous manner.   
    • The Client will provide the Service Provider with payment for all service and support costs at the agreed interval.   
    • The Client shall obtain and maintain any and all necessary licenses for software, IT Asset(s), or services (including cloud services) being leveraged within the Client’s IT Environment(s). 
    • The Client will provide adequate workspace and facilities for use by the Service Provider’s representatives as reasonably required by the Service Provider.   
    • The Client shall inform the Service Provider of all health and safety rules and regulations that apply at its locations.
    • The Client agrees to pay any and all agreed upon charges, fees, and/or costs upon the schedule, terms and conditions defined within the Agreement.   
    • Client agrees to provide high-speed access to the internet and adequate electrical power, cooling, and space necessary to operate hardware and monitoring software.   
    • Client agrees to grant access to data for the Service Provider to perform service responsibilities 
12. Service Provider Responsibilities 
    • The Service Provider will conduct business with the Client in a professional and courteous manner.   
    • The Service Provider shall provide reasonable effort to accommodate any changes to offered services that may be requested by the Client, and any adjustments made to the services defined within the Agreement can result in changes to the fees and charges detailed herein.  Any changes to the Agreement, including adjustments to fees, are subject to the Client and Service Provider’s mutual acceptance.   
    • The Service Provider is responsible for ensuring that it complies with any and all statutes, regulations, bylaws, standards, codes of conduct, compliances, and any other rules relevant to the provisioning of the Services defined within the Agreement.  
    • The Service Provider will leverage several software applications to provide the Services defined within the Agreement and will attempt to comply with any and all End-User license agreements which relate to those software applications. 

Defined Terms

Term(s)	Definition
Client portal	The Client Portal is a website connected to the Service Provider’s Professional Services Automation (PSA) tool or the Service Provider’s Remote Monitoring and Management (RMM) tool.  This site gives access to service/support requests with ticket creation, review, and update tools.   Upon request the Service Provider can create user accounts for a Client’s End-Users and key contacts.
Dispatch	The Service Provider will occasionally need to send its representatives on-site to address service/support requests.  The process of scheduling and sending the Service Provider’s representative is referred to as Dispatch.
End-User	An end-user is referred to a Client’s colleagues, staff members, and any/all users of the Client’s IT Assets and IT Environment.
Information Technology Services Solutions	The Service Provider classifies the Services they provide as described in Appendix 3.  Each individual Service can be referred to as an Information Technology Services Solution.
IT Asset	IT Asset refers to any technical resource, generally within a Client’s environment, and includes both physical and digital resources.  This includes but is not limited to workstations, servers, network devices, software, applications, licenses, cloud subscriptions and any other peripheral devices that are technical in nature.
IT Environment	IT Environment refers to the collection of IT Assets and their complete configuration at a Client’s location/site.  This includes but is not limited to all IT Assets, the Client’s network, the Client’s Windows Domain, the Client’s Software Installations, the Client’s Hardware Configurations, IT Strategies, IT Plans, and/or IT Processes.
Monitors	Monitors are the IT Resources the Service Provider uses to discover and receive alerts about a Client’s IT Environment and Assets.  They detect and alert on issues detected, warnings, errors, and when thresholds for known issues are exceeded.
Onboarding	Onboarding is referred to the process and period in which the Service Provider is establishing their services within a Client’s IT Environment(s).  This is usually a 45-90 day period that includes several steps to ensure the successful and effective implementation of the Service Provider’s services.
On-site	The Service Provider will occasionally need to send its representatives on-site to address service/support requests.  On-site refers to when a Service Provider’s representative is providing services at the Client’s site/location.
Out-of-scope	Out-of-scope refers to any and all services, support requests, charges, costs, fees, products, licenses, and other coverages that do not fall under the scope of this agreement.  Out-of-scope implies that additional charges, fees, or expenses will be necessary.
Period of Service	This refers to any and all periods or lengths of time where the Client is covered by this Agreement.
Serviceability	Serviceability refers to the health and state of an IT Asset or to the Client’s IT Environment.  Serviceability refers to the ability of the Service Provider to cover a given IT Asset or aspect of the Client’s IT Environment.  In most scenarios, when serviceability standards and conditions cannot be met, any and all services involving those assets or aspects of the IT Environment will be treated as out-of-scope.
Tray icon	The tray icon is an icon that is part of the Service Provider’s remote monitoring and management (RMM) platform and its included agent software.  This software is deployed to the Client’s managed workstations/servers/mobile devices and provides tray icon access to the Service Provider’s services.   It includes the ability for Client End-Users to submit support/service requests to the Service Provider.
Network Devices	Network Devices refer to IT Assets that include but are not limited to; firewalls, switches, routers, gateways, network cables, hubs, wireless gateways, and wireless access points.