Anatomy IT Hardware as a Service Attachment
This Service Attachment is between Anatomy IT, LLC, a New York company (sometimes referred to as “we,” “us,” “our,” OR “Provider”), and the Client found on the applicable Order (sometimes referred to as “you,” “your,” OR “Client”) and, together with the Order and Master Services Agreement forms the Agreement between the parties the terms to which the parties agree to be bound. All terms not otherwise defined herein have the meaning set forth in the Master Services Agreement.
The parties further agree as follows:
HARDWARE AS A SERVICE
Provider shall deliver the network, server and server operating systems, workstation Equipment and applications as identified on the attached Order (“HaaS Services”). Provider’s delivery of that Equipment is on a rental basis only and is expressly subject to the terms of this Service Attachment pertaining to Provider-supplied Equipment.
The Monthly Service Fee for Haas Services includes all fees for the use of the Provider owned hardware, software, operating systems, and all labor needed to install and maintain all hardware, software, operating systems delivered to client under this section.
FUNDING PRIOR TO COMPLETION OF DELIVERY, INSTALLATION, AND ACCEPTANCE
Client hereby requests that the third-party funding source to which we will assign our rights in this Agreement (“Financing Source”) pay to us 85% of the amount of our invoice(s) for the projected cost of the Equipment and/or Software referenced herein and related installation and implementation charges (the “Advance Funding Amount”), though the Equipment and/or Software has not yet been delivered, installed, and/or accepted by you. You agree to timely make the periodic payments required by this Agreement, notwithstanding that the Equipment and/or Software has not been delivered and/or installed. Once the Equipment and/or Software is fully delivered and installed by us and accepted by you, your payment obligations under this Agreement shall become fully fixed and non-cancelable for the entire Agreement term; provided, however, if the Equipment and/or Software is, for any reason, not fully delivered and installed by us and unconditionally accepted by you within six (6) months after the date Financing Source pays the Advance Funding Amount to us (the “Advance Funding Period”), then you shall repay to Financing Source, at Financing Source’s request: (a) the Advance Funding Amount, plus (b) interest on the Advance Funding Amount in an amount equal to one percent (1%) per month from the date Financing Source paid the Advance Funding Amount to us, plus (c) any other amounts then currently due and payable under this Agreement, minus (d) a credit equal to the financing payments actually paid by you during the Advance Funding Period. Upon Financing Source’s receipt of such amount in full, this Agreement shall terminate and your obligations hereunder will be deemed satisfied. You agree that any issues you may have concerning delivery, installation, implementation, and the quality or fitness of the Equipment and/or Software and any related services will be resolved exclusively between you and us. Financing Source’s willingness to pay the Advance Funding Amount to us is expressly conditioned upon your agreement to the terms of this paragraph, and you agree that Financing Source’s reliance on your promises in this paragraph is reasonable.
All Equipment must be used by Client for the purpose for which it was intended. Any critical business data stored on any laptop computers or desktop computers must be backed up by Client. Provider must be free to make any changes needed on these machines, including formatting the hard drive.
Ownership of Provided Software and Equipment
Client agrees that any Equipment and/or Software provided by Provider shall remain the property of Provider or any third-party sourced to provide the Equipment and/or Software and must be returned if requested by Provider in furtherance of the Services or upon termination of this Agreement. Client further agrees to cease the use of any software or equipment that remains the property of Provider upon termination of this agreement.
Monthly Service Fees
Client shall pay to Provider the following Service Fees:
Monthly Service Fees
For the services described in this Service Attachment, Client shall unconditionally agrees to pay the Monthly Service Fees specified in the attached Service and Order Form by the due date. This Agreement will begin on the date Financing Source pays us the Advance Funding Amount. We may charge you a one-time origination fee of $89.50. If any amount payable to us is past due, you will pay a late charge equal to: 1) the greater of ten (10) cents for each dollar overdue or twenty-six dollars ($26.00); or 2) the highest lawful charge, if less. If an advance payment is required, the amount exceeding one payment shall be applied to the last payment(s) during the term or any renewal term.
If Provider is unable to commence Services on the Service Commencement Date because of any failure on the part of Client (including but not limited to failure of Client to provide the Client resources in a timely manner), Client nonetheless will incur Service Fees set forth in this Section beginning on the Service Commencement Date.
In the event that Client experiences any unexpected failure or downtime on a system that Provider is monitoring or managing under this Service Attachment (a “Service Event”), Provider will work with Client to determine the cause of the Service Event. If it is determined that a Service Event is due to any act or omission by Provider and not otherwise the result of any Exclusions, as defined below, Box Meta will apply an appropriate credit to Client’s next invoice in an amount proportional to the disruption to Client’s business operations caused by the Service Event. In no event will such a credit exceed the total amount owed to Provider on such invoice.
Provider is not responsible for failures related to:
Hardware which is no longer under either a manufacturer or third-party extended warranty covering hardware problems.
Services related to parts, equipment or software not covered by vendor/manufacturer warranty or support.
Alterations and Modifications
Service and repair made necessary by the alteration or modification of equipment other than that authorized by Provider, including alterations, software installations or modifications of equipment made by
Client’s employees or anyone other than Provider.
Problems Resulting from Client Hardware Malfunction
There is a defect or malfunction in any hardware or software that adversely affects Provider’s ability to perform the Services.
Client Resource Problems
There are problems resulting from your resources that are not under our management or control.
Client Personnel Problems
Provider’s ability to resolve issues is due to problems with Client’s personnel not under Provider’s control.
Scheduled maintenance windows and other agreed upon periods of time that are necessary for repairs or maintenance.
Changes you may have made to the networking environment that were not communicated to or approved by us.
Problems or failures related to a prioritization or reprioritization of tasks by Client.
Problems resulting from a Force Majeure Event as described in the Master Services Agreement.
Agreed Temporary Exclusions
Any temporary exclusion we may request, subject to your approval, to implement changes in applications, environments, conversions or system software.
Problems resulting from your actions or inactions that were contrary to our reasonable recommendations.
Problems resulting from your failure to fulfill any responsibilities or obligations under our agreements.
Provider’s ability to resolve problems due to Client re-prioritizing Provider’s recommendations.
Factors Beyond Provider’s Control
Delays or downtime due to any factor outside of Provider’s reasonable control.
Internet Connectivity Loss or Loss of Power
Loss of Internet connectivity or power at your location for any reason.
Problem Ticket Management
The time interval between the initial occurrence of a desktop malfunction or other issue affecting functionality and the time Client reports the desktop malfunction or issue to Provider.
Costs Outside Scope
The cost of any parts, equipment, or shipping charges of any kind. The cost of any software, licensing, or software renewal or upgrade fees of any kind. The cost of any third-party vendor or manufacturer support or incident fees of any kind. The cost of additional facilities, equipment, replacement parts, software or service contract.
Maintenance of Applications software packages, whether acquired from Provider or any other source.
Programming (modification of software code) and program (software) maintenance.
Training services of any kind.
Software and Web Development
Software and web development related work.
Printer Hardware Repair
Printer hardware repair and maintenance.
Home or remote computers that are not covered under this Agreement.
Uninterruptible power supply (UPS) devices.
Third-party Vendor Disputes
The management or involvement with disputes or charges with any third-party vendor, other than issues relating to the technical services.
Implementation of new or replacement software.
Relocation / Satellite Office
Office relocation/satellite office setup.
TERM AND TERMINATION
This Service Attachment is effective on the Service Start Date identified in the Order. Unless properly terminated by either party, this Service Attachment will remain in effect through the end of the term specified on the OrderThis Agreement will begin on the date Financing Source pays us the Advance Funding Amount. (the “Initial Term”).
EXCEPT AS DESCRIBED IN “FUNDING PRIOR TO COMPLETION OF DELIVERY, INSTALLATION, AND ACCEPTANCE” THIS AGREEMENT IS NONCANCELABLE AND IRREVOCABLE AND IT CANNOT BE TERMINATED BY YOU. UPON YOUR ACCEPTANCE OF THE EQUIPMENT FINANCING SOURCE WILL PAY US THE BALANCE OF THE AMOUNT INVOICED FOR THE EQUIPMENT. FINANCING SOURCE IS PAYING THE ADVANCE FUNDING AMOUNT, AND FINANCING SOURCE WILL PAY THE BALANCE OF THE AMOUNT INVOICED FOR THE EQUIPMENT AFTER YOUR ACCEPTANCE THEREOF, BASED ON YOUR UNCONDITIONAL PROMISE TO PAY US UNDER THE TERMS OF THIS AGREEMENT. YOU ARE NOT ENTITLED TO REDUCE OR SET-OFF AGAINST AMOUNTS DUE UNDER THIS AGREEMENT FOR ANY REASON.
“RENEWAL” MEANS THE EXTENSION OF ANY INITIAL TERM SPECIFIED ON AN ORDER FOR AN ADDITIONAL TWELVE (12) MONTH PERIOD FOLLOWING THE EXPIRATION OF THE INITIAL TERM, OR IN THE CASE OF A SUBSEQUENT RENEWAL, A RENEWAL TERM. THIS SERVICE ATTACHMENT WILL RENEW AUTOMATICALLY UPON THE EXPIRATION OF THE INITIAL TERM OR A RENEWAL TERM UNLESS ONE PARTY PROVIDES WRITTEN NOTICE TO THE OTHER PARTY OF ITS INTENT TO TERMINATE AT LEAST SIXTY (60) DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR OF THE THEN-CURRENT RENEWAL TERM.
CLIENT MAY CANCEL AN AUTOMATIC RENEWAL BY CONTACTING PROVIDER AT: TOLL-FREE PHONE NUMBER, E-MAIL ADDRESS, OR POSTAL ADDRESS.
If the Order specifies no Initial Term with respect to any or all Services, then we will deliver those Services on a month-to-month basis. We will continue to do so until one party provides written notice to the other party of its intent to terminate those Services, in which case we will cease delivering those Services at the end of the calendar month in which such written notice is received by the other party.
Early Termination by Client With Cause
Client may terminate this agreement for cause following sixty (60) days’ advance, written notice delivered to Provider upon the occurrence of any of the following:
- We fail to fulfill in any material respect our obligations under this agreement and fail to cure such failure within thirty (30) days following our receipt of your written notice.
- We terminate or suspend our business operations (unless succeeded by a permitted assignee under this agreement)
Early Termination by Client Without Cause
If you have satisfied all of your obligations under this Service Attachment, then no sooner than ninety (90) days following the Service Start Date, you may terminate this Service Attachment without cause during the Initial Term upon sixty (60) days’ advance, written notice, provided that you pay us a termination fee equal to fifty percent (50%) of the recurring, Monthly Service Fees remaining to be paid from the effective termination date through the end of the Initial Term, based on the prices identified on the Order.
Termination by Provider
We may elect to terminate this Service Attachment upon thirty (30) days’ advance, written notice, with our without cause. Provider has the right to terminate this Service Attachment for less than ninety (90) days for illegal Client conduct. Provider may suspend the Services upon ten (10) days if Client violates a third-parties end user license agreement regarding provided software. Provider may suspend the Services upon fifteen (15) days if Client’s action or inaction hinder Provider from providing the contracted Services.
Effect of Termination
As long as Client is current with payment of: (i) the Fees under this Agreement, (ii) the Fees under any Project Services Attachment or Statement of Work for Off-Boarding, and/or (iii) the Termination Fee prior to transitioning the Services away from Provider’s control, then if either party terminates this Service Attachment, Provider will assist Client in the orderly termination of services, including timely transfer of the Services to another designated provider. Client shall pay Provider at our then prevailing rates for any such assistance. Termination of this Service Attachment for any reason by either party immediately nullifies all access to our services. Provider will immediately uninstall any affected software from Client’s devices, and Client hereby consent to such uninstall procedures.
Upon request by Client, Provider may provide Client a copy of Client Data in exchange for a data-copy fee invoiced at Provider’s then prevailing rates, not including the cost of any media used to store the data. After thirty (30) days following termination of this Agreement by either party for any reason, Provider shall have no obligation to maintain or provide any Client Data and shall thereafter, unless legally prohibited, delete all Client Data on its systems or otherwise in its possession or under its control.
Provider may audit Client regarding any third-party services. Provider may increase any Fees for Off-boarding that are passed to the Provider for those third-party services Client used or purchased while using the Service.
Client agrees that upon Termination or Off-Boarding, Client shall pay all remaining third-party service fees and any additional third-party termination fees.
You will keep the Equipment in good working order, use it for business purposes only and not modify or move it from its initial location without our consent. You agree that you will not take the Equipment out of service and have a third party pay (or provide funds to pay) the amounts due hereunder. You will comply with all laws, ordinances, regulations, requirements and rules relating to the use and operation of the Equipment.
The Total Monthly Payment Amount stated on the face of this Agreement consists of an amount payable to us under the terms of this Agreement (the “Equipment Payment”) and the initial amount payable to us under a separate statement of work, IT service agreement or other arrangement for network and/or software support services, equipment maintenance and/or professional IT services relating to your IT network (the “Service Payment”). The initial Service Payment is 94.94% of the Total Monthly Payment Amount. We will invoice you for the Total Monthly Payment Amount on one invoice for your convenience. If the amount of the Service Payment is adjusted during the term of this Agreement in accordance with your statement of work or IT service agreement, we will invoice you for the updated Service Payment after the effective date of such adjustment. You will look solely to us for performance under any such arrangement or to address any disputes arising thereunder.
Except as provided in this paragraph, references to “Equipment” include any software referenced above or installed on the Equipment. We do not own the software and cannot transfer any interest in it to you. We are not responsible for the software or the obligations of you or the licensor under any license agreement. You are solely responsible for protecting and removing any confidential data/images stored on the Equipment prior to its return for any reason.
LIMITATION OF WARRANTIES
EXCEPT TO THE EXTENT THAT WE HAVE PROVIDED YOU A WARRANTY IN WRITING, WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU CHOSE ANY/ALL THIRD-PARTY SERVICE PROVIDERS BASED ON YOUR JUDGMENT. YOU MAY CONTACT US OR THE MANUFACTURER FOR A STATEMENT OF THE WARRANTIES, IF ANY, THAT THE MANUFACTURER IS PROVIDING. WE ASSIGN TO YOU ANY WARRANTIES GIVEN TO US.
You may not sell, assign, or sublease the Equipment or this Agreement without our written consent. We may sell or assign this Agreement and our rights in the Equipment, in whole or in part, to a third party without notice to you. You agree that if we do so, our assignee will have our assigned rights under this Agreement but none of our obligations and will not be subject to any claim, defense, or set-off that may be assertable against us or anyone else.
LOSS OR DAMAGE
You are responsible for any damage to or loss of the Equipment. No such loss or damage will relieve you from your payment obligations hereunder. Except for claims, losses, or damages caused by our gross negligence or willful misconduct, you agree to indemnify us and our assignee, if applicable, against any claims, losses, or damages, including attorney fees, in any way relating to the Equipment or data stored on it. In no event will we be liable for any consequential or indirect damages.
You agree to maintain commercial general liability insurance acceptable to us. You also agree to:
1. keep the Equipment fully insured against loss at its replacement cost, with us named as loss payee; and
2. provide proof of insurance satisfactory to us no later than 30 days following the commencement of this Agreement, and thereafter upon our written request.
If you fail to maintain property loss insurance satisfactory to us and/or you fail to timely provide proof of such insurance, we have the option, but not the obligation, to secure property loss insurance on the Equipment from a carrier of our choosing in such forms and amounts as we deem reasonable to protect our interests. If we secure insurance on the Equipment, we will not name you as an insured party, your interests may not be fully protected, and you will reimburse us the premium which may be higher than the premium you would pay if you obtained insurance, and which may result in a profit to us through an investment in reinsurance. If you are current in all of your obligations under the Agreement at the time of loss, any insurance proceeds received will be applied, at our option, to repair or replace the Equipment, or to pay us the remaining payments due or to become due under this Agreement, plus our booked residual, both discounted at 3% per annum.
Following Financing Source’s payment of the invoices provided by us, Financing Source will own the Equipment. You will pay when due, either directly or by reimbursing us, all taxes and fees relating to the Equipment and this Agreement. Sales or use tax due upfront will be payable over the term with a finance charge.
END OF TERM
At the end of the term of this Agreement (or any renewal term) (the “End Date”), this Agreement will renew for an additional one-year period under the same terms unless a) we receive written notice from you, at least 60 days prior to the End Date, of your intent to return the Equipment, and b) you timely return the Equipment to the location designated by us, at your expense. If a Purchase Option is indicated above and you are not in default on the End Date, you may purchase the Equipment from us “AS IS” for the Purchase Option price. If the returned Equipment is not immediately available for use by another without need of repair, you will reimburse us for all repair costs. You cannot pay off this Agreement or return the Equipment prior to the End Date without our consent. If we consent, we may charge you, in addition to other amounts owed, an early termination fee equal to 5% of the price of the Equipment.
If a payment becomes 10+ days past due, or if you otherwise breach this Agreement, you will be in default, and we may require that you return the Equipment to us (to the extent the Equipment was delivered to you) at your expense and pay us: 1) all past due amounts and 2) all remaining payments for the unexpired term, plus our booked residual, discounted at 3% per annum; and we may disable or repossess the Equipment (to the extent the Equipment was delivered to you) and use all other legal remedies available to us. You agree to pay all costs and expenses (including reasonable attorney fees) we incur in any dispute with you related to this Agreement. You agree to pay us 1.5% interest per month on all past due amounts.
We shall assign our rights in this Agreement for financing purposes to Financing Source upon their payment of our invoices. You agree that, following your acceptance of the Equipment, this Agreement, in the hands of our assignee, is, or shall be treated as, a “Finance Lease” as that term is defined in Article 2A of the Uniform Commercial Code (“UCC”). You agree to forgo the rights and remedies provided under sections 507-522 of Article 2A of the UCC.
This Agreement is the entire agreement between you and us relating to our providing and your use of the Equipment and supersedes any prior representations or agreements, including any purchase orders. Amounts payable under this Agreement may include a profit to us. The parties agree that the original hereof for enforcement and perfection purposes, and the sole “record” constituting “chattel paper” under the UCC, is the paper copy hereof bearing (i) the original or a copy of either your manual signature or an electronically applied indication of your intent to enter into this Agreement, and (ii) our original manual signature. If a court finds any provision of this Agreement unenforceable, the remaining terms of this Agreement shall remain in effect. You authorize us to either insert or correct the Agreement number, serial numbers, model numbers, beginning date, and signature date. All other modifications to the Agreement must be in writing signed by each party.