Desktop Co-op Service Agreement
Terms and Conditions

Applies to Desktop Co-op Online Sign-up.

This Desktop Co-op, Inc. Service Agreement is entered into by "Client"and Desktop Co-op, Inc. as of the Effective Date indicated by the date of the online form submission for the provision by Desktop Co-op, Inc. of services under the terms and conditions of this Agreement. By clicking "I Agree" to this Online Order Form, Client agrees to all the terms and conditions attached hereto. This Online Order Form, Terms and Conditions, Exhibit A – Price List, and Exhibit B – Support Services attached thereto are referred to herein collectively as the "Agreement."   

1. DEFINITIONS 

As used in this Agreement, the following terms shall have the following meanings: 

1.1 "Confidential Information" shall mean any non-public data, information and other materials regarding the products, services or business of a party (and/ or, if either party is bound to protect the confidentiality of any Third Party's information, of a Third Party) provided to either party by the other party where such information is marked or otherwise communicated as being "proprietary" or "confidential" or the like, or where such information should, by its nature, be reasonably considered to be confidential and/ or proprietary. Without limiting the foregoing, Confidential Information of Desktop Co-op, Inc. includes the software and all source code, source documentation, inventions, know-how, and ideas, updates and any documentation and information related to the Desktop Co-op Service. 

1.2 "End-User" shall mean employees or consultants of Client or other end-users who have registered and been identified by Client to receive a password in order to access the Desktop Co-op, Inc. Service. End Users agree to the Microsoft SPLA End User License Terms.

1.3 "Documentation" shall mean any on-line help files or written instruction manuals regarding the use of the Desktop Co-op Service. 

1.4 "Fees" shall have the meaning set forth in Section 4.1. 

1.5 "Desktop Co-op Service" shall mean Desktop Co-op, Inc.’s proprietary software solution and related services for managed application and support services. This service allows organizations to share backend network equipment, processing, licensing, support, maintenance and other resources for the benefit of reliability, performance, availability, scalability and reduced costs.

1.6 "Modifications" means improvements, additions, modifications, updates, upgrades, bug fixes or derivative works relating to the Desktop Co-op Service, by whomever made and whether or not such Modifications incorporate or are based on any information gained as a result of this Agreement. 

1.7."Recommended Equipment" shall mean any hardware or other equipment, if any, recommended by Desktop Co-op, Inc. to be used with the Desktop Co-op Service as specified in the Documentation. 

1.8 "Results" shall have the meaning set forth in Section 3. 

1.9 "Desktop Co-op, Inc. Software" shall mean any executable software provided by Desktop Co-op, Inc. for Client to use with the Desktop Co-op Service. 

1.10 "Support Services" shall mean those support and maintenance services provided by Desktop Co-op, Inc. to Client pursuant to the terms and conditions described herein and more specifically set forth on Exhibit B attached hereto. 

1.11 "Term" shall have the meaning set forth in Section 7.1. 

1.12 "Third Party" shall mean any entity or individual other than Desktop Co-op, Inc. or Client. 

2. LICENSE GRANT 

2.1 Limited License Grant. Subject to the terms and conditions of this Agreement, Desktop Co-op, Inc. hereby grants to Client, during the Term, a nontransferable, nonexclusive, limited license to (i) use the Desktop Co-op, Inc. Software solely for the purposes of integration with Client's existing systems and applications pursuant to this Agreement and (ii) use, market and provide access to the Desktop Co-op Service solely to End-Users only as provided herein and solely in accordance with the Documentation. Client agrees that all rights to use and/ or otherwise exploit the Desktop Co-op Service, the Desktop Co-op, Inc. Software, works and other matter developed hereunder not expressly granted to Client in this Agreement are reserved by Desktop Co-op, Inc. and its Third Party licensors or vendors, as applicable. 

2.2 Trademark License. 

(a) Desktop Co-op, Inc. hereby grants to Client, during the Term, a non-exclusive, non-transferable, sub-licensable, revocable license to display the Desktop Co-op, Inc. trademarks (name and logo only) ("Desktop Co-op, Inc. Trademarks") designated by Desktop Co-op, Inc. for use in connection with the marketing and promotion of the Desktop Co-op Service; provided however that such Desktop Co-op, Inc. Trademarks are used solely for the purpose of providing the End-Users with access to the Desktop Co-op Service. Client acknowledges and agrees that the presentation and image of Desktop Co-op, Inc. Trademarks should be uniform and consistent with respect to all services, activities and products associated with the Desktop Co-op, Inc. Trademarks. Accordingly, Client's use of such Desktop Co-op, Inc. Trademarks shall be subject to Desktop Co-op, Inc.'s then-current trademark/ logo usage guidelines, if any, provided by Desktop Co-op, Inc. to Client from time to time during the Term. All literature and materials printed, distributed or electronically transmitted by Client and containing Desktop Co-op, Inc. Trademarks will include the following notice: Desktop Co-op is a trademark or registered trademark of Desktop Co-op, Inc. or its affiliates in the United States and/ or in other countries. 

(b) Client hereby grants to Desktop Co-op, Inc., during the Term, a non-exclusive, non-transferable, sub licensable, revocable license to display the Client trademarks (name and logo only) ("Client Trademarks") designated by Client for use in connection with the marketing and promotion of the Desktop Co-op Service. Desktop Co-op, Inc. acknowledges and agrees that the presentation and image of Client Trademarks should be uniform and consistent with respect to all services, activities and products associated with the Client Trademarks. Accordingly, Desktop Co-op, Inc.'s use of such Client Trademarks shall be subject to Client's then-current trademark/ logo usage guidelines, if any, provided by Client to Desktop Co-op, Inc. from time to time during the Term. All literature and materials printed, distributed or electronically transmitted by Desktop Co-op, Inc. and containing Client Trademarks will include the following notice: "[Insert Mark] is a trademark or registered trademark of Client or its affiliates in the United States and/ or in other countries.

2.3 Restrictions. Client agrees that the Desktop Co-op Service contains trade secrets and other valuable proprietary information owned by Desktop Co-op, Inc. or its Third Party vendors. Client shall not and shall not allow End-Users to (a) modify, make derivative works, alter or permit a Third Party to modify, make derivative works or alter, any part of Desktop Co-op Service or Desktop Co-op, Inc. Software, (b) copy or permit a Third Party to copy the Desktop Co-op Service or Desktop Co-op, Inc. Software, in part or in whole, (c) reverse engineer, decompile, disassemble or otherwise attempt to derive source code of the Desktop Co-op Service or Desktop Co-op, Inc. Software or other proprietary information from the Desktop Co-op Service, or (d) sell, transfer, lease or disclose the Desktop Co-op Service or Desktop Co-op, Inc. Software to a Third Party. Desktop Co-op, Inc. may electronically monitor Client's use of the Desktop Co-op Service or Desktop Co-op, Inc. Software for compliance with the license terms and restrictions set forth in this Section 2. 

3. OWNERSHIP 

3.1 As between the parties to this Agreement, Desktop Co-op, Inc. and its licensors shall retain sole and exclusive ownership of, and all right, title and interest in and to the Desktop Co-op, Inc. Software and Desktop Co-op Service, as well as any graphical user interface modifications made by or for Client and all suggestions, ideas, improvements, data, feedback, evaluation materials, reports, presentations, records, designs, technology, inventions, know-how, works of authorship, software, specifications, Modifications and other materials, information and any other intellectual property made, developed, conceived or reduced to practice (whether by or for Client or Desktop Co-op, Inc.) in the performance of this Agreement, (collectively, "Results"). To the extent necessary to affect this intention, Client hereby assigns to Desktop Co-op, Inc. any and all right, title and interest in and to the Desktop Co-op Service and Desktop Co-op, Inc. Software and Results, and shall take all actions necessary to accomplish such assignment.  Client shall retain a permanent non-exclusive license to use for its own purposes all client specific items in which DESKTOP CO-OP, INC. is granted an ownership interest under the terms of this section.

3.2 Subject to compliance with the privacy policy displayed on the Desktop Co-op, Inc. website(s) applicable to the Desktop Co-op Service, the parties shall jointly own all information which is transmitted to Desktop Co-op, Inc. by the Client in connection with the Desktop Co-op Service ("End-User Information"). Without the prior written consent of the other party, each party shall utilize End-User Information solely for its own internal business purpose and shall not sell, license or provide any End-User Information (other than aggregated data which does not identify any End-Users) to any Third Party; provided however, each party shall be permitted to disclose End-User Data for the purpose of complying with a subpoena or other governmental request for such information upon notice of such subpoena or governmental request. 

4. FEES, PAYMENT AND AUDIT 

4.1 Fees. Client agrees to pay Desktop Co-op, Inc. the fees and other charges set forth below for the Desktop Co-op Service and/ or Support Services, as applicable, provided under this Agreement (collectively, the "Fees"). All Fees are payable in United States dollars and are exclusive of any and all taxes, and Client is responsible for payment of such taxes. 

(a) Desktop Co-op Service. Client agrees to pay Desktop Co-op, Inc. the fees set forth in Exhibit A. 

(b) Related Expenses. Fees do not include travel, lodging or other expenses related to the Desktop Co-op Service and/ or Support Services. Client will be billed for travel, lodging, incidentals and other expenses as they relate to the services rendered hereunder by Desktop Co-op, Inc. to Client.

(c) Increase in Fees.  In the event that any service provider, software vendor or equipment provider increases fees or costs to Desktop Co-op, Inc. during the term of this Agreement, which services or equipment are utilized by Desktop Co-op, Inc. in providing services to Client, then Desktop Co-op may increase the fees payable by the Client during the term of this Agreement by a proportionate amount to cover the increased provider cost.  

4.2 Payment. Client shall make payment in advance of End User setup, monthly access service and software licensing.  System Administration, support and other charges will be billed monthly and paid after service is rendered.  Payment is due and will be paid on or before the first day of each calendar month for all services.  Desktop Co-op, Inc. shall invoice Client require automated draft for payment.  If Client is unable to offer automated draft services for payment, Client will provide in advance of services rendered, the entire setup fee and the first two month’s total monthly charges pursuant to Exhibit A, due in check form on the Effective Date.  Automated draft payments will occur on the first business day of each month during which services are rendered. 

4.3. Timely Payment. Desktop Co-op, Inc. has the right to suspend any and all services if the Fees are not timely paid pursuant to the terms of the Agreement. 

4.4 Right to Modify Fees. DESKTOP CO-OP, INC. reserves the right to modify Fees for the Desktop Co-op Service at the commencement of any new term.  Desktop Co-op, Inc. is not responsible for any changes to any third party’s licensing fees.  Client is responsible for maintaining up to date licensing and fee schedules per their own third party licensing agreements.

5. RESPONSIBILITIES 

5.1 Client Responsibilities 

(a) Client shall be solely responsible for the manner in which Client and End-Users use the Desktop Co-op Service. Client shall ensure that only authorized End-Users have access to any passwords provided by Desktop Co-op, Inc. for use in connection with the Desktop Co-op Service and shall not disclose such passwords to any other individual. Client acknowledges and agrees that it is solely responsible for strictly maintaining the confidentiality and integrity of such passwords and Client shall indemnify and hold harmless Desktop Co-op, Inc. from and against any liability, damages or costs arising from Client's failure to comply with this Section 5.1( a). Client shall notify Desktop Co-op, Inc. immediately in writing and by telephone if the security or integrity of a password or any other part of the system has been compromised.   Failure to comply may result in additional fees to Customer.

(b) Client agrees to (i) Co-operate and consult with Desktop Co-op, Inc. in the delivery of the Desktop Co-op Service to Client, (ii) provide and maintain, in good and working order at all times, its own Internet access and all necessary Recommended Equipment, telecommunications equipment, software and other materials necessary for End-Users to access and use the Desktop Co-op Service at all times.  Modification of Client’s connectivity software (ICA or RDP client) settings or configuration by the End User or Client is not supported.  Desktop Co-op will assist with the restoration of Client’s connectivity software settings or configuration at the Client Specific System Administration hourly rate. 

(c) Client End Users who maliciously, wantonly or unknowingly bring damage, destruction, or downtime to the system by adding malware, spyware, Trojans, viruses, running destructive code, browsing untrustworthy sites, opening email attachments, giving out their password(s) or any other private information, attempting to break or circumvent system security, deleting personal, organizational or system files, or by doing any other activity are responsible for their actions and Desktop Co-op, Inc. is in no way responsible for Client End User actions or the results of their actions and Desktop Co-op, Inc. can and will charge Customer for additional support hours to resolve related issues.
(d) Client shall promptly provide to Desktop Co-op, Inc. the name, address, telephone and email address of each End-User, as well as the name, company, telephone number and email address for local hardware and Internet connectivity support of Client and End-Users (collectively, the "Registration Information") upon receipt of such information. 

(e) Client represents and warrants to Desktop Co-op, Inc. that it (i) has all requisite legal power and authority to execute this Agreement and to carry out and perform its obligations hereunder, and (ii) is and will remain in compliance with all applicable laws, regulations and rules of any government body or other competent authority relating to its business or performance under this Agreement. 

5.2 Desktop Co-op, Inc. Responsibilities. 

(a) Subject to the terms and conditions provided herein, Desktop Co-op, Inc. shall use commercially reasonable efforts to provide the Desktop Co-op, Inc. Software and Desktop Co-op Service in material conformance with the Documentation. 

(b) Upon receipt of the Registration Information, Desktop Co-op, Inc. shall use commercially reasonable efforts to have passwords issued to End-Users in order to access the Desktop Co-op Service. 

(c) Desktop Co-op, Inc. represents and warrants to Client that it (i) has all requisite legal power and authority to execute this Agreement and to carry out and perform its obligations hereunder, and (ii) is and will remain in compliance with all applicable laws, regulations and rules of any government body or other competent authority relating to its performance under this Agreement. 

6. SUPPORT SERVICES AND TRAINING 

6. 1 Support Services. Desktop Co-op, Inc. shall use commercially reasonable efforts to provide the Support Services to Client as more specifically set forth in Exhibit B attached hereto. 

6.2 Scheduled Maintenance. Desktop Co-op, Inc. reserves the right to take down applicable servers containing the Desktop Co-op Service to conduct routine maintenance checks ("Scheduled Maintenance"). Desktop Co-op, Inc. will use commercially reasonable efforts to perform Scheduled Maintenance outside of the business hours of Monday-Friday, 8 am-5 pm. Desktop Co-op, Inc. will not be responsible for any damages or costs incurred by Client, if any, for Scheduled Maintenance. 

7. TERM AND TERMINATION 

7.1 Term. This Agreement shall commence on the Effective Date and shall continue for a twelve month period (the "Initial Term") and shall automatically renew for successive twelve month periods (collectively with the Initial Term, the "Term") unless either party provides ninety (90) days notice prior to the end of the Term of the party's intention not to renew the Agreement, and any renewal term is subject to the increased fees or pricing in effect by Desktop Co-op, Inc. as of the date of the renewal.  Desktop Co-op, Inc. will provide notice of new fee schedules and/or pricing to Client at least 90 days prior to the renewal term. Either party may terminate this Agreement as set forth below: 

7.2 Termination for Cause. Either party may terminate this Agreement by giving to the other party written notice of such termination upon any of the following events: (a) the other party's material breach of the Agreement (subject to the other party's right to cure within thirty days after receipt of such notice), (b) the other party becomes subject to any bankruptcy or insolvency proceedings under federal or state statute, (c) the other party becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, (d) the other party has wound up or is liquidated, voluntarily or otherwise or (e) the other party terminates or suspends its business. Desktop Co-op, Inc. may terminate this Agreement if the Client fails to make any payment due hereunder within ten days after receiving notice from Desktop Co-op, Inc. that such payment is delinquent. 

7.3 Effect of Termination. Upon any termination of this entire Agreement, (a) Desktop Co-op, Inc. shall immediately cease providing the Desktop Co-op Service to Client and all licenses granted hereunder shall terminate; and (b) Client shall promptly (i) pay to Desktop Co-op, Inc. all unpaid Fees, including any late fees, accrued prior to termination, (ii) return to Desktop Co-op, Inc. all tangible embodiments of the Desktop Co-op, Inc. Software and/or hardware, Desktop Co-op Service and Confidential Information and (iii) delete or destroy any data or software installed in a Client's computer system downloaded from the Desktop Co-op Service. 

7.4 Survival. All rights to payment and the provisions of Sections 1, 3, 4, 7.3, and 8 through and including 13 of this Agreement shall survive any expiration or termination of this Agreement. 

8. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY STATED HEREIN, THE DESKTOP CO-OP, INC. SOFTWARE, DESKTOP CO-OP SERVICE, SUPPORT SERVICES, TECHNOLOGY, INTELLECTUAL PROPERTY MATERIALS, INFORMATION AND OTHER ITEMS PROVIDED BY DESKTOP CO-OP, INC. UNDER THIS AGREEMENT ARE PROVIDED TO CLIENT AND END-USERS ON AN "AS IS" BASIS WITH NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE AND DESKTOP CO-OP, INC. AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NONINFRINGEMENT AND MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DESKTOP CO-OP, INC. DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DELAY AND SHALL NOT BE LIABLE FOR ANY LOSS OF DATA. 

9. INDEMNIFICATION 

9.1 Indemnification Obligation. Subject to Section 9.2 below, Client shall indemnify, defend and hold Desktop Co-op, Inc. harmless from any claims, actions, losses, liabilities, damages and expenses (including attorney's fees and court costs) made, assessed or awarded against Desktop Co-op, Inc. by any Third Party arising out of or in connection with  (i)  Misuse by client or End User of the Desktop Co-op Service, and/ or  (ii) representations or warranties made by Client to End-Users regarding the Desktop Co-op Service that is not in accordance with the Documentation or representations made pursuant to this Agreement. 

9.2 Conditions to Indemnification. The indemnity obligations set forth in this Section are contingent upon: (a) the indemnitee giving prompt written notice to the indemnitor of any such claim(s) (except that failure to notify shall not limit or negate the indemnitor's obligation to indemnify indemnitee except to the extent that such failure to notify is materially harmful to indemnitor in the proceeding regarding the particular claims(s); (b) the indemnitor having sole control of the defense or settlement of the claim; and (c) at the indemnitor's request and expense, the indemnitee Co-operating in the investigation and defense of such claim(s). 

10. LIMITATION OF LIABILITY 

10.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF DESKTOP CO-OP, INC. FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE DESKTOP CO-OP, INC. SOFTWARE, DESKTOP CO-OP SERVICE AND SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT OR ERRORS, OR OTHER DEFECTS, REPRESENTATIONS, USE OF SERVICES OR ARISING OUT OF THE FAILURE TO FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO THE AMOUNTS PAID BY CLIENT HEREUNDER FOR THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. 

10.2 EXCEPT WITH RESPECT TO THE PARTIES LICENSE RESTRICTIONS, RESPONSIBILITIES AND CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS AS PROVIDED IN SECTIONS 9 AND 12, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER OR NOT CAUSED BY THE ACTS OR OMISSIONS OR NEGLIGENCE OF ITS EMPLOYEES OR AGENTS, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. 

11. END-USERS. Client and Desktop Co-op, Inc. agree that any and all agreements between Client and End-Users involving the Desktop Co-op Service ("End-User Agreements") shall legally bind End-Users to restrictions, disclaimer of warranties, indemnification and limitation of liability provisions at least as protective of Desktop Co-op, Inc. as Sections 2.3, 8, 9.1 and 10 of this Agreement. 

12. CONFIDENTIAL INFORMATION 

12.1 Disclosure and Use. Both parties agree that this Agreement, the Exhibits attached hereto, and the terms and conditions set forth herein and therein are Confidential Information. The Confidential Information disclosed by either party ("Disclosing Party") to the other ("Receiving Party") constitutes the confidential and proprietary information of the Disclosing Party, and the Receiving Party agrees to treat all Confidential Information of the other in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care. The Receiving Party shall use Confidential Information of the Disclosing Party only in performing under this Agreement and shall retain the Confidential Information in confidence and not disclose to any Third Party (except as authorized under this Agreement) without the Disclosing Party's express written consent. The Receiving Party shall disclose the Disclosing Party's confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, and such employees and contractors must be bound by this Agreement or have entered into agreements with the Receiving Party containing confidentiality provisions covering the Confidential Information with terms and conditions at least as restrictive as those set forth herein. 

12. 2 Exceptions. Notwithstanding the foregoing, each party's confidentiality obligations hereunder shall not apply to information which: (a) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (b) becomes publicly available without fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a Third Party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; (d) is developed independently by the Receiving Party without use of or access to the Disclosing Party's Confidential Information; or (e) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure and reasonably Co-operates with the Disclosing Party in limiting such disclosure. 

12. 3 Remedies. Notwithstanding any other provision of this Agreement,  either party shall be entitled to seek a court injunction for the sole purpose of suspending or terminating the Desktop Co-op, Inc. Service provided to Client to protect its interests in the event of any breach or threatened breach by Client of this Section 12. Nothing stated herein shall be construed to limit any other remedies available to the parties. 

13. GENERAL TERMS 

13.1 Force Majeure. Except with respect to payment obligations, neither party shall be liable for any failure of performance or equipment due to causes beyond such party's reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties. 

13.2 Basis of Bargain. Desktop Co-op, Inc. and Client acknowledge that Desktop Co-op, Inc. has set its Fees and entered into this Agreement in reliance upon the disclaimers of warranties and limitations of liability and damages as set forth in this Agreement, and that such provisions form an essential basis of the bargain between the parties and do not cause this Agreement, or the remedies available hereunder, to fail of its or their essential purpose. 

13.3 Assignment; Binding Effect. This Agreement may not be transferred or assigned by either party without the express written consent of the other,  Any purported transfer or assignment in contravention of this Section shall be null and void. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. 

13.4 Notices. Any notice hereunder shall be deemed properly given when delivered, if delivered in person, or sent via facsimile (with confirmation of receipt), overnight courier, certified or registered mail (postage prepaid) to Client at the address listed on Order Form or to Desktop Co-op, Inc. at: 

Desktop Co-op, Inc.
ATTENTION: Legal Department
511 Crowfield Lane
Mount Pleasant, SC 29464

Each party must notify the other party of any changes to its address in accordance with this Section. 

13.5 Amendment. No Waiver. Except as otherwise expressly provided herein, any provision of this Agreement may be amended or modified and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the parties. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right then or in the future. 

13.6 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement. 

13.7 Prevailing Party.  The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney's fees and costs in connection with such action. 

13. 8 Independent Contractors. The relationship of Desktop Co-op, Inc. and Client established by this Agreement is that of independent contractors and nothing in this Agreement shall be construed (i) to give either party the power to direct or control the day to day activities of the other or (ii) to constitute the parties as partners, franchisees, joint ventures, co-owners or otherwise as participants in a joint or common undertaking. Further, nothing in this Agreement shall prevent Desktop Co-op, Inc. from licensing or providing the Desktop Co-op Service or similar services to any Third Party or from engaging in any development of software or services similar in any manner to the Desktop Co-op Service provided hereunder. 

13.9 Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting that parties rights here under would cause irreparable injury for which monetary damages would not be an adequate remedy and that the non-breaching party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. 

13.10 Export Compliance. The rights and obligations of Client regarding the Desktop Co-op, Inc. Software shall be subject to such applicable United States and foreign laws and regulations governing licenses, delivery or export of technology or content abroad. 

13.11 Invoices. The terms, provisions or conditions of any purchase order or other business form or written authorization used by either party will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure  to object to those terms, provisions or conditions. 

13.12 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the economic intent of the parties, and the remainder of this Agreement will continue in full force and effect.
 
13. 13 Counterparts. This Agreement may be executed in counterparts and by telecopy, each of which shall be considered an original, but all of which taken together shall constitute one and the same instrument. 

13.14 Entire Agreement. This Agreement, including the links and Exhibits attached hereto, constitutes the entire agreement of the parties concerning its subject matter and supersedes any and all prior or contemporaneous, written or oral negotiations, correspondence, understandings and agreements between the parties respecting the subject matter of this Agreement.  This Agreement may not be orally modified, and any modification must be in writing and signed by an authorized representative of both parties.

EXHIBIT A
Price List (See Online Order Form)
Notes on pricing:  

Company Setup and Migration includes the following:  per client - migration of documents, permissions, user and group accounts, and Desktop Co-op certified applications.

User Setup includes the following:  provisioning for account, permissions including group policy, folders, profile and assistance with the installation of the remote client software (Microsoft Remote Desktop Connection). 

User Monthly Access includes the following:  Managed application services for one individual user running one Client-licensed remote desktop server compliant and Desktop Co-op, Inc. certified application, data backup of data stored on Desktop Co-op servers, end user first level technical support and help desk. Technical support and help desk DO NOT include training for end users. Training calls and incidents beyond the scope of Desktop Co-op access will result in an additional fee at the Client Specific System Administration rate or will be referred to original manufacturer or third party support.  Applications that do not meet Desktop Co-op’s certification requirements will be setup, hosted and managed on a billable hourly rate based on the Client Specific System Administration hourly rate.

Excluded: Licensing for any additional software or components that Client may require outside of included applications; software or hardware that runs locally at the Client’s location (Client is responsible for maintaining their own licensing for any custom applications as well as any locally running software per third party license agreements).  Locally running software is any software that is not running in the Desktop Co-op datacenter.  Client will provide Desktop Co-op, Inc. with a photocopy and inventory of all licenses for any software that will run on Desktop Co-op’s application servers. Training, programming, updating, critical and urgent client specific software issues, required patching outside of the normal patching schedule, technical support and help desk issues beyond the scope of Desktop Co-op basic access and functionality, web or database design, information system consulting, systems integration consulting and anything else not mentioned in the included sections are explicitly excluded and will be billed to the Client on a time and materials basis at the stated Client Specific System Administration rate. Transfer or copying of data from Desktop Co-op to local client resources is excluded; if assistance with scripting to transfer data is required by the Client it can be done by Desktop Co-op at the billable hourly rate of $250.

*Additional users and services may be added as necessary.  Some advanced notice may be required. Setup and monthly charges will apply based on current Desktop Co-op pricing.  Excessive maintenance hours required for client specific applications and/or users and excessive disk space or resource usage may result in additional charges per Desktop Co-op’s discretion.

Unless otherwise noted, Client Specific System Administration Hourly Rate for RMM Covered hardware and/or Desktop Co-op services is $250 per hour billed in quarter hour increments.  Client Specific Administration Hourly Rate for Non-RMM Covered systems or non-Desktop Co-op services is $250 per hour billed in whole hour increments.

EXHIBIT B
Support Services and Training

1. GENERAL SUPPORT SERVICES DESCRIPTION. Support Services shall be provided for the Desktop Co-op Service solely as set forth in this Agreement.

1. 1 Client Support Obligations.

(a) Client shall provide a designated application support contact ("Designated Support Contact") with all relevant contact information to respond to support questions regarding the Desktop Co-op Service.

(b) Client shall provide a designated billing contact ("Billing Contact") with all relevant contact information to respond to billing and payment questions regarding the Desktop Co-op Service.

1.2 Desktop Co-op, Inc. Support Services Obligations. Desktop Co-op, Inc. shall provide Client the Support Services set forth below.

(a) Support. Commencing on CUTOVER DATE which is estimated to be 90 days after the Effective Date, Desktop Co-op, Inc. shall provide telephone support for all End-Users, during normal business hours through the following: 843-881-4651, 423-793-5561 and http://www.desktopco-op.com. Emergency support is available 24 hours per day, seven days per week on a call back basis.  End users needing emergency support after hours will contact our paging service at 423-793-5561 to request a call back.  Desktop Co-op, Inc. will classify support calls into one of four categories and will respond as indicated in the following table:

Problem - Resolution

  • Local Hardware and Internet Connectivity - If the End-User is unable to connect to the Internet, Desktop Co-op, Inc. will advise the End-User to contact their ISP and / or local support contact. 
  • Connectivity to Application(s) - If the End-User is unable to connect to the Internet, Desktop Co-op, Inc. will advise the End-User to contact their ISP and / or local support contact. 
  • Application Usage - If the End-User is able to connect to the Internet, but is unable to connect to their Application(s) on the Desktop Co-op, Inc. server, Desktop Co-op, Inc. will use all reasonable efforts to correct the problem. If the End-User requires assistance using the Application, Desktop Co-op, Inc. will refer the End-User to the Designated Support Contact or third party application vendor. 
  • Billing/Collections - Desktop Co-op, Inc. will refer billing/collection questions to the Designated Billing Contact.

(b) Standard Upgrades. Desktop Co-op, Inc. shall provide Client with standard upgrades to the Desktop Co-op Service that Desktop Co-op, Inc. makes generally available. Desktop Co-op, Inc. shall use commercially reasonable efforts to provide any additions and upgrades to its own hardware, operating systems, or web-enabling software that is necessary, in its sole discretion, to provide Client with optimal performance and reliability. The cost of such additions and upgrades shall be included in any monthly invoices.  Software licensing upgrades to client provided custom applications are not included in standard upgrades and will be billed to the Client at the Client Specific System Administration hourly rate and additional charges may apply for client provided custom application upgrades.

(c) Client Printer Support. Desktop Co-op will support printers known to be compatible with Microsoft Remote Desktop Services.  At its discretion, Desktop Co-op will provide limited support for printers not known to be compatible.  In most cases, if a printer is not known to be compatible, a universal print driver with limited functionality may be used – at some additional cost to Client.

2. TIMELY PAYMENT. Desktop Co-op invoices are due on the 1st of the month for the month that services are provided.  Desktop Co-op, Inc. has the right to suspend any Support Services if the Fees are not paid timely pursuant to the terms of the Agreement. 

Updated Terms and Conditions
Terms and conditions of this agreement may be updated regularly.  Please refer back to this page for any updates to the terms and conditions of this agreement.