Nature of Services

As a services business, ArcSource Consulting Inc. (“Consultant” or “ArcSource”) provides time-based services, project-based services, and bundled managed services. Client pays ArcSource for services, products, information, expertise and time. ArcSource is a reseller of some hardware, software, cloud, internet, and service products created by other Third-Party companies.

 

Types of Service Agreements

ArcSource provides several different structures of Service Agreements for Clients and Projects of different types. Project Based Services are a fixed fee for specific and agreed-upon services. Basic Hourly Services are fees based on actual time spent by Consultant. Retainer Services are monthly or annual fees paid for priority access to ArcSource services of all types. Managed Services are monthly or annual packages of fixed-price products, services, activities, outcomes, and features. Emergency Services are premium fees paid for urgent or emergency response. These Standard Terms and Policies are incorporated into all Service Agreements, proposals, and quotes made between ArcSource and Client.

 

Types of Services. All Services Billable.

Client pays for time for all consulting and technical services provided by ArcSource according to the applicable service agreement. Consulting services include meetings, planning, research, procurement, advice, negotiation, observation, analysis, recommendations, coordination, consultation, training, phone calls, technical support, project management, specifications, design, documentation, one-way travel time, and other miscellaneous services. Technical services include installations, setup, configuration, troubleshooting, workstations, servers, overhauling, maintenance, networking, hardware, software, database development, and programming. These services may be performed inside or outside of the offices of Client or ArcSource Consulting Inc. A one-hour minimum charge applies for on-site service. A quarter-hour minimum charge applies for remote services and phone services. Remote services may be charged a per-incident fee in addition to hourly services to use ArcSource’s remote access technologies if Client does not have remote access capabilities and/or free technologies are not available and/or ArcSource is not providing remote access tools.

 

Third-Party Cloud Service Availability

ArcSource is not responsible for the availability of Cloud Services provided by other vendors which are bundled by ArcSource or contracted directly by Client. Should Cloud Service interruptions occur, ArcSource will work with the appropriate vendor to determine when they will be restored by the vendor. ArcSource will work with non-bundled Cloud Services vendors at hourly or incident rates unless otherwise covered under this agreement as Vendor Management.

 

Third-Party Service Providers

“Third-Party Service Providers” means Services provided by an entity or a Party other than the ArcSource in fulfillment of the agreement requirements whose terms and conditions ArcSource and Client may be legally bound. Client's right to use the Third-Party Services is subject to Client’s understanding of, compliance with, and consent to these Terms and of any Third-Party agreements, which ArcSource does not have authority to vary, alter or amend. Therefore, ArcSource may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms. The Third-Party Provider may require the ArcSource to sign a contract with the Third-Party Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may impose conditions and requirements upon Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or appear on our website which identifies the Third-Party Service Provider and a link to its terms and conditions or EULA. Client hereby agrees to review all Third-Party Terms and Conditions and consent to those Third-Party Terms and Conditions which Client has consented ArcSource to contract upon its behalf.

 

Third-Party Product Vendors 

“Third-Party Product Vendors” means software, machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the agreement requirements. ArcSource will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and ArcSource will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product. The Third-Party Product Vendor may require the ArcSource to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”) and the terms of the Third-Party Contract may impose certain conditions and requirements upon Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or attached to the appendix which identifies the Third-Party. Client hereby agrees to review all Third-Party terms and conditions, and consent to those Third-Party terms and conditions which Client has consented ArcSource to contract upon its behalf. Third-Party Product Vendor terms and conditions are available on the Third-Party Vendor websites.

 

Security and Regulatory Recommendations

From time to time ArcSource may make recommendations regarding regulatory compliance, safety, and security related to Client’s systems and practices (eg, multi-factor authentication) with the goal of reducing Client’s risk. If Client fails to adopt or implement the recommended tools and protocols, Client agrees to accept its additional risk and Client is responsible for any and all damages related to regulatory, security, privacy, or data protection events, including but not limited to fines, data breach notification, malware or ransomware costs, restoration, forensic investigation, restoring backups, or any other costs or damages related to Client’s refusal to implement the recommended tools and protocols.

 

Payment for Services

ArcSource shall submit an invoice to Client for payment for all services and client shall pay ArcSource upon receipt of invoices. Client shall pay ArcSource immediately upon completion of hourly services if requested by ArcSource. Payment for recurring services is due on the first of the month via recurring electronic payment transaction. Payment for project services is divided into two milestones at the commencement of projects and upon completion of projects.

 

Schedule of Fees

Consultant will provide Client a list of fees charged for specific types of services. Consultant may update this list from time to time.

 

Late Fees

Late payments by Client shall be subject to late penalty fees of 3% per month (compounding interest) from the due date until the amount is paid.

 

Expenses

Client shall reimburse Consultant for expenses that are attributable to work performed for Client. These may include, but are not limited to, parking fees, long-distance telephone, delivery services, postage, and long-distance travel expenses.

 

Product Sales

Client shall pay Consultant for all hardware and software products resold to Client plus applicable sales taxes and state-mandated fees. 

 

Product Procurement

Client shall reimburse Consultant for the cost and delivery of any hardware, software, or supplies purchased for Client. Payment shall be made immediately upon delivery or at a time specified by Consultant, including in advance.

 

Reusable Consulting Materials

Consultant may occasionally use materials, supplies, tools, and methods while performing services for Client. These consulting materials remain the exclusive property of ArcSource Consulting Inc.

 

Intellectual Property Ownership

Consultant grants Client a royalty-free exclusive license to use the methods, information, or anything created or developed by Consultant for Client under this Agreement. The license shall have a perpetual term and Client may not transfer it. Consultant shall retain all copyrights, patent rights and other intellectual property rights to the methods, information, or anything created or developed under this Agreement.

 

Client’s Confidential Information

During the term of this agreement and for two years afterward, Consultant will use reasonable care to prevent the unauthorized use or dissemination of Client’s confidential information. Reasonable care means at least the same degree of care Consultant uses to protect its own confidential information from unauthorized disclosure. Confidential information is to be Client information clearly marked as confidential, or disclosed orally and summarized and identified as confidential in writing delivered to Consultant within 15 days of disclosure. Confidential information does not include information that:

  • the Consultant knew before Client disclosed it,
  • is or becomes public knowledge through no fault of Consultant,
  • Consultant obtains from sources other than Client who owe no duty of confidentiality to Client, or
  • Consultant independently develops.

 

Independent Contractor Status

Consultant is an independent contractor, not Client’s employee. Consultant’s employees or subcontractors are not Client’s employees. Consultant and Client agree to the following rights consistent with an independent contractor relationship.

  • Consultant has the right to perform services for others during the term of this Agreement.
  • Consultant has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed.
  • Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement.
  • Neither Consultant or Consultant’s employees nor subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay or other fringe benefit plan of Client.
  • Client may not independently hire or contract with Consultant’s employees or subcontractors without written approval at any time during the term of this agreement or for 12 months after the termination of any ArcSource service agreement. Such approval will only be granted if financial compensation of at least $25,000 is provided to Consultant by Client for the buyout, placement, referral or other agreement.

 

Nature of Computers and Software Products

Client understands that computer and software products are very complex in nature. Client understands that problems arise from time to time due to the interaction of hardware, software, hackers, and users or for other unexplainable reasons. Client understands that hardware and software products occasionally have defects that prevent their correct or expected operation. Consultant is committed to developing and implementing best practices and industry-standard practices in all of its services that minimize problems. Client understands that Consultant will sometimes not be able to solve a problem that is impossible to solve in a timely manner, and, in such cases, Client agrees to pay for the troubleshooting process even if the problem cannot be solved with Consultant’s best efforts. All issues and obligations with Client hardware and software warranties and software license agreements are exclusively between Client and the hardware and software vendors and manufacturers. Client may pay Consultant to seek warranty services or product replacements on Client’s behalf.

 

ArcSource Insurance 

ArcSource agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law. Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by the following insurance policies, ArcSource will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).

 

Client Commercial Property Insurance

Client shall secure at Client's own cost and expense Property Insurance for Client equipment that is part of the provisions of the service agreement.

 

Client Cyber Insurance

Client acknowledges that Client is solely responsible for obtaining and maintaining, for the duration of this Agreement, its own Cyber Liability Insurance to adequately insure its cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client's specific coverage and policy limit requirements. Client acknowledges that ArcSource does not provide Client with any form of Cyber Liability or other insurance coverage in connection with the Services or an executed agreement, and that Client’s use of the Services does not, in any way: (i) replace a Cyber Liability policy, (ii) mitigate Client’s need for Cyber Liability insurance coverage or (iii) relieve Client’s responsibility for obtaining its own Cyber Liability Insurance coverage.

 

Mutual Waiver of Subrogation

 TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS' COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD MSP ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF SERVICE.

 

Warranty

Consultant warrants that all services performed under this Agreement shall be performed consistent with generally prevailing professional or industry standards. Client must report any deficiencies in Consultant’s services to Consultant in writing within 30 days of performance to receive warranty remedies. Client’s exclusive remedy for any breach of the above warranty shall be the reperformance of Consultant’s services. If Consultant is unable to re-perform the services, Client shall be entitled to recover the fees paid to Consultant for the deficient services. 

THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THIS AGREEMENT.

 

Limited Liability

This provision allocates the risks under this Agreement between Consultant and Client. Consultant’s pricing reflects the allocation of risk and limitation of liability specified below.

  • Consultant’s total liability to Client under this Agreement for damages, costs, and expenses, shall not exceed the compensation received by Consultant under this Agreement for a specific project, task, or service at issue. However, Consultant shall remain liable for bodily injury or personal property damage resulting from grossly negligent or willful actions of Consultant or Consultant's employees or agents while on Client's premises to the extent Client did not cause such actions or omissions.
  • NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR THE OTHER’S LOST PROFITS, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES.

 

Resolving of Disputes

If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in Alameda County. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to a mutually agreed-upon arbitrator in Alameda County. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to do so. Costs of arbitration, including attorney fees, will be allocated by the arbitrator.

 

Notices

All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows:

  • when delivered personally to the recipient's address as stated in this Agreement,
  • three days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated on this Agreement, or
  • when sent by fax to the last fax number of the recipient known to the person giving notice.

Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first class mail, or the recipient delivers a written confirmation of receipt.

 

No Partnership

This Agreement does not create a partnership relationship. Neither party has the authority to enter into contracts on the other's behalf.

 

Applicable Law

The laws of the State of California will govern this Agreement.

 

Last Updated

March 1, 2025