Davenport Group Care – As a Service
Terms & Conditions

Network Monitoring & Alerting Service

Lasted Updated Date: July 14, 2021

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Davenport Group Managed Services is an offering that is executed upon a signed Statement of Work (“SOW” or “Agreement”) between Davenport Group, Inc (“Davenport Group”) and a respective Customer (“Client”) who wishes to receive the services identified pursuant to the below terms and conditions.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows.

ASSURANCES

1. The Client shall provide and maintain a Primary, Secondary and Tertiary points of contact and shall maintain current information for the Term.
2. The Client agrees that the Onboarding Phase is required to be completed before the ongoing services will be performed.
3. Client understands, and accepts, that tools used by Davenport Group to monitor, alert and report may require updates and enhancements that may cause limited, and unplanned, downtime that may impact the services capability outlined in this agreement.
4. In order to use the Davenport Group Services, Client expressly authorizes Davenport Group to download and install from time-to-time certain software components made available by Davenport Group onto their network environment and systems. When loaded, Client, will, among other things, (i) allow communication between Davenport Group, its provided software component(s), to the Client Environment and any Device that is connected to the Client Environment); (ii) allow Davenport Group, and its software component(s), to scan and evaluate Client Network; and (iii) extract data from Client Network and transfer such data to the Services provided through such a component(s).
5. Client agrees that Davenport Group will be offering its services as a best effort and in fulfilling Davenport Group’s obligations under this Agreement, Addendums and Statements of Work.
6. Remote Access Network Requirements
   • Network connectivity between Client’s infrastructure and Davenport Group will be via Internet through a remote connection tool and is required for the Services.
   • The Client is responsible for Internet services, VPN network equipment and management at its location. 
   • The network design for remote connectivity requires a highly secure protocol to be adhered to by both Davenport Group and the Client.  Davenport Group’s protocol configuration will be provided to the client during the Onboarding effort.

TAXES

Client agrees to pay all applicable taxes, which result from any transaction under this Agreement, excluding taxes based on net income of Davenport Group.  If Client claims exemption from any such taxes, Client will provide Davenport Group with the documentation required, by the taxing authority, at point of purchase to support the exemption.

DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

DAVENPORT GROUP WARRANTS THAT SERVICE WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER.  IF ANY FAILURE TO MEET THE FOREGOING WARRANTY APPEARS WITHIN THIRTY (30) DAYS FROM THE DATE SUCH SERVICE WAS INITIATED, DAVENPORT GROUP SHALL RE-PERFORM THE SERVICE OR REFUND THE AMOUNT PAID FOR SUCH SERVICE. THE FOREGOING SETS FORTH THE EXCLUSIVE REMEDIES AGAINST DAVENPORT GROUP FOR CLAIMS BASED ON A DEFECT IN SERVICES. DAVENPORT GROUP MAKES NO OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE, INFRINGEMENT OR THE LIKE. DAVENPORT GROUP’S ENTIRE LIABILITY FOR ANY CLAIM, REGARDLESS OF LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT PAID FOR THE SERVICE PROVIDED. IN NO EVENT WILL DAVENPORT GROUP BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, THIRD PARTY CLAIMS, LOSS OF USE, LOSS OF DATA, LOSS OF INCOME OR PROFIT, LOSS OF VALUE TO EQUIPMENT OR AFFILIATED COMPONENTS.

THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS FOR PERSONAL INJURY OR PHYSICAL DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGIGENCE OR WILLFUL MISCONDUCT.

INDEMNIFICATION

Unless where certain provisions are limited by Law, each party (as “indemnitor”) agrees to indemnify, defend and hold harmless the other party (as “indemnitee”) from and against any and all claims, losses liability, costs, or expenses (including reasonable attorney’s fees), hereinafter called “Claims”, arising out of bodily injury or death of any person or property damage, to the extent that such Claims are caused by the sole negligence, misconduct or other fault of the Indemnitor, its agents, employees or contractors. In no event will such liability of any kind include any special, incidental, or consequential damages.

CONFIDENTIALITY

Unless where certain provisions are limited by Law, each party agrees to utilize reasonable efforts in preserving the confidentiality of proprietary data or information that is designated confidential and is submitted pursuant to this Agreement.  Each party will be liable to the other party only in the event of a willful and material disclosure of such proprietary data or information.

NON-SOLICITATION

Each party agrees not to hire, contract, or take away or cause to be hired, contracted, or taken away, any employee or independent contractor from the other party, for a period of two years following termination of this agreement.

FORCE MAJEURE

Davenport Group shall exercise commercially reasonable efforts to perform the services in a timely manner, but shall not be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms explosions, labor disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of Davenport Group’s technical staff (collectively referred to herein as “Force Majeure”). Davenport Group shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.

TERM AND TERMINATION

Termination for Cause
Davenport Group may terminate any or all Services and Orders (except as qualified in subsection (iv) below) by written notice to Client:

I. upon Client’s failure to pay any Fees when due if Client fails to pay such Fees within ten (10) days of Client’s receipt of notice of such failure to pay from Davenport Group;
II. upon Client’s failure to pay any Fees when due or in full two (2) times or more in any twelve (12) month period;
III. if Davenport Group is unable to provide Service(s) hereunder due to Client’s acts or omissions and fails to correct such acts or omissions within ten (10) days of Client’s receipt of notice of such failure from Davenport Group;
IV. as to any applicable Service(s), upon any regulatory or governmental order requiring Davenport Group to suspend such Service(s) or that is reasonably likely to result in the loss of Davenport Group’s operating authority, upon reasonable notice to Client; or
V. for any other breach by Client, or a third party through Client, of a material provision of this agreement or an Order if Client fails to cure such breach within twenty (20) days of Client’s receipt of notice of such breach from Davenport Group;

Termination Charge
In addition to all of its other obligations under this agreement, in the event the Service is terminated by Davenport Group pursuant to Termination for Cause or terminated by Client for any reason, in either of these instances, Client shall owe Davenport Group a termination charge (“Termination Charge”) of an amount equal to, as of the effective date of termination, one hundred percent (100%) of all remaining MRCs that would have been incurred and payable to Davenport Group by Client for the remainder of the Initial Term or the then-current Renewal Term for each such Service, as applicable.

FEES AND PAYMENT

The following pricing shall apply provided Davenport Group receives a purchase order(s) referencing the respective quote and/or this agreement. Until receipt thereof, neither party shall have any obligation to the other for this agreement.

Non-Recurring Charges (NRC)
Davenport Group shall invoice Client in accordance with the information provided in the respective quote to be attributed to One-time Onboarding fees.

Monthly Recurring Charges (MRC)
If under a monthly billing model, upon completion of the Onboarding Services, the parties shall mutually agree to the date when Ongoing, Operational Steady State Services shall commence.  The Ongoing Services Start Date shall be the earlier of the mutually agreed start date or 15 days after Davenport Group has indicated that the Onboarding services have been completed, whichever date is sooner. Davenport Group is authorized to invoice Client the recurring operations fees effective the first day of each month for services rendered for that month and continue until expiration of the Recurring Services Term.

As a Service Charge (ASC)
Upon execution of the SOW, if under an annual or multi-year billing model, billing will commence. Davenport Group is authorized to invoice Client for the respective term. 

The actual operations fees may also increase based on the number of additional Network devices that are covered by the service. In this case, additional billing may occur.

OTHER PROVISIONS

1. Client may not assign or otherwise transfer its obligations under this Agreement except with the written consent of Davenport Group, which shall not be unreasonably withheld.
2. Davenport Group may use affiliates and subcontractors to perform the Services and/or Monitoring capability.
3. This Agreement shall be interpreted in accordance with the laws of the State of Tennessee.
4. Either party may bring no action under this Agreement more than one year after the cause of action has accrued.
5. If a court of competent jurisdiction deems any provision of this Agreement, invalid or unenforceable, such judgment shall not invalidate or render unenforceable the remainder of the Agreement.

Any notice, under this Agreement, shall be in writing and shall be effective upon receipt via certified United States Mail or nationally recognized courier. All changes to this Agreement must be in writing and executed