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Acanthus Terms and Conditions 

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  • 1.        SCOPE OF SERVICES.  Company (Acanthus Technology LLC) agrees to assist Client with professional services, goods, and advice as set forth in one or more applicable statements of work, quotes, or service tickets (each, a “Statement of Work”) that may be executed from time-to-time under this Agreement (collectively, the “Services”).  To be effective, each Statement of Work (if any) shall reference this Agreement and, when executed by both parties, shall automatically be deemed a part of, and governed by the terms of, this Agreement.  Each Statement of Work is enforceable according to the terms and conditions contained therein, and in the event of a direct conflict between the language of this Agreement and any Statement of Work, the language of the Statement of Work shall control, but only with respect to that particular Statement of Work.   Company shall perform all Services in accordance with the relevant best practices for the industry, as well as those service levels explicitly described in any relevant Statement of Work.  All services provided are based on a customary work schedule or a typical business day, Monday through Friday, 9:00 AM to 5:30 PM (Company and standard holidays excluded). If the client requires Company to work other than during these indicated times, hourly incremental overtime rates may apply, unless previously agreed to in writing in advance by Client and Company. For all Statement of Work ordered, the Company will commence ordering of the Client’s components as soon as possible after Client’s written approval and initial down-payment. The Company will make reasonable efforts to deliver the items ordered by Client as soon as they are received unless a different time has been agreed to by Client and the Company in writing. The pricing listed in any Statement of Work may not include shipping costs, insurance and local sales and value added taxes. Additional costs for necessary permits may be incurred and are not included. Shipping costs, insurance and taxes are the responsibility of the Client unless there is an agreement in writing between the Company and Client to the contrary. Client must provide documentation of tax-exempt status if Client is not subject to sales tax.  In regards to Managed Services, Company warrants and represents that Services shall be available to Client on a consistent and reliable basis, except during Scheduled Downtime or as the result of a Force Majeure, or due to client-side downtime.

    2.    EXCLUSIONS FROM SCOPE OF SERVICES.  Company is not responsible for any specialized work not included in the scope of Company’s agreement.  Such work must be performed by a third-party with the needed expertise, the Client is responsible for hiring said party.  This also applies to any trade work (ie: electrical, construction) required to successfully complete the installation work required under this Agreement. Any and all necessary trade work is to be completed by the Client or by another contractor at the Client’s expense. Unless otherwise agreed in writing, Company quotes all projects and work without any electrical/construction expenses included in the proposal. Any cabling problems encountered during any phase of this project will be the responsibility of the Client, unless Company has provided installation or has provided upgrades to that particular cabling section, and/or it is under warranty. Additional charges will apply at Company’s Time and Material rate to correct the problem. Company is not liable or responsible for any damage or faulty installations by other contractors supplied hired by Client.

    3.    PAYMENT.  

    a.)    All invoices are Due Upon receipt unless other arrangements have been explicitly made. A payment method must be on file for all services and orders without exception. Monthly managed services are billed automatically each month to your payment method on file and autopay is required for monthly recurring services. All other orders and billable service calls will be billed to the payment method on file once the invoice is due. Access to the portal where you can set up and manage payments and invoices is provided to each client to manage and view their account.

    b.)    Credit card charges over $2,000 will incur a 3.5% processing fee due to high merchant service costs. There is never a fee for ACH or eCheck. If you would prefer not to set up a payment method, a $10 billing fee will be charged each month to your monthly managed services for account processing.

    c.)    In the event the monthly payments are not made for managed services, support services will be unavailable to the client from the date of the non‐payment. A full disruption of services will apply for Managed Services invoices that are unpaid past 60 days. Should this occur, a reinstatement fee will apply based on the extent of services needed. Invoices past due 30 days or more accrue a late fee of 2.8% a month (33.6% per annum) or $25.00 per month past due, whichever amount is greater.

    d.)     Any accounts outstanding past 90 days will be sent to collections or any other legal recourse to settle the account.  Client agrees to these terms and accepts to be liable for all reasonable attorneys’ fees, as well as costs incurred in collection of past due balances including but not limited to collection fees, filing fees and court costs.

    e.)     TIME IS OF THE ESSENCE IN THE PERFORMANCE OF ALL PAYMENT OBLIGATIONS BY CLIENT.  Any disputes, concerns or issues in regards to the work performed by the Company or its employees, staff members, or subcontractors must be sent to the Company’s management in written form.  Company will take immediate action to rectify any problem or concern. Invoices may be disputed within five (5) days of issue date. Client must include a written explanation of what portion of the invoice is disputed. The written explanation of the portion of the invoice disputed must be addressed to an Acanthus Technology manager. Any invoices disputed after five (5) days of issuance will not be considered. 

    f.)      All MSP and physical security services require at a very minimum a one (1) year term agreement, with options or requirements for other commitments specified in the Statement of Work. Any additional work requested will be billed separately and is subject to Company’s current standard rates. If client already has existing MSP services with Company, new services will be added to existing monthly services agreement with the necessary fees. Additions to an existing recurring contract will extend the contractual terms for the entire contract starting from the date additional recurring services were added. Changes in number of computers, servers, firewalls/locations, or other systems at client’s site must be notified and updated immediately to Company for MSP agreement to be eligible for support and valid; changes in monthly billing will reflect up-to-date number of systems covered and will be subject to fees from date of addition.

    g.)     Unless otherwise stated in writing, each Statement of Work ordered by the Client will need a minimum deposit of one hundred percent (100%) of parts plus fifty percent (50%) of labor plus any applicable tax and shipping. If Statement of Work does not include any components, fifty percent (50%) of the total cost of the Statement of Work must be paid prior to services being performed. In certain instances, or large projects, progressive billing for the project may also be put into place at the discretion of the Finance Manager.  The outstanding amount, plus any other additional charges incurred during the project, are due same day of project completion. If a service request is placed without a specific statement of work or quote, the invoice for the labor will outline payment terms. Pricing on quoted orders are dependent on vendor pricing and is not guaranteed. Orders with a down payment invoice that is not paid after 21 days from the date of the invoice will be canceled and must go through the quoting process again to obtain updated pricing.

    h.)     All sales are final. In the event of an exception, returns and/or exchanges are subject to approval from Company. If an item is considered for a return/exchange, a restocking fee will be charged and the fee will be based upon the item’s value, availability and other factors; a minimum fee of twenty-five per cent (25%) of the item’s sale price is expected. Any return or exchange must be pre-approved in writing from Company’s management. All equipment must be returned in original packaging, in like-new resalable condition.

    4.    ACCESS TO PREMISES.  To the extent that Services are performed on Client’s premises (“Premises”), Client hereby grants to Company the right of ingress and egress over the Premises and further grants Company a license to provide the Services described in any Statement of Work within the Premises.  To the extent that Services are provided to Client on property other than the Premises, it shall be Client’s responsibility to secure, at Client’s own cost, prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permission necessary for Company to provide Services at such location(s).  Client shall provide Company with any passwords or keys (digital or otherwise) that Company requires in order to provide the Services to Client.  Company shall not be liable for delay in performance or nonperformance of any term or condition of this Agreement directly or indirectly resulting from Client’s denial to Company of full and free access to Client’s systems and components thereof, or Client’s denial to Company of full and free access to Client’s personnel or Premises pursuant to this Agreement.

    5.    WARRANTIES; LIMITATIONS; LIMITATIONS OF LIABILITY. 

    a.)     Any third party products provided to Client pursuant to this Agreement, including but not limited to third party hardware, software, peripherals and accessories (collectively, “Third Party Products”), shall be provided to Client carrying Manufacturer’s warranties.  Company shall use reasonable efforts to assign all warranties (if any) for the Third Party Products to Client, but will have no liability whatsoever for such third party products and software, including Managed Services software and offerings.  All Third Party Products are pro­vided without any warranty as between Company and Client, and Company shall not be held liable as an insurer or guarantor of the performance or quality of Third Party Products. Company assumes no liability for failure of equipment or software or any losses resulting from such failure.  

    b.)     Although best practices and protection is offered through the Managed Services offerings and other security measures, the Company will assume no responsibility and shall not be held liable for any attacks or issues arising from malware, ransomware, crypto-ware or other malicious attacks stemming from similar destructive and harmful software, hacking attacks, etc.  Client is encouraged to be vigilant and take proactive participation in the protection of property, data and information.  Due to the ever-changing nature of software and other technologies, different software bundles or applications may be used or changed during the duration of the Managed Services offering.  Company reserves the right to make any changes to third party products, software bundles, underlying platforms or technologies used with/for Client that may differ from the original outlined software in the Managed Services agreement.  Not all software or services listed in managed services offering may be compatible with clients existing technology infrastructure, configurations, systems or networks.  Deployment and installation will be done at Company’s discretion.

    c.)      Client agrees that client retains the sole responsibility for its software licensing and warrants and represents that it shall not use systems or software for any purposes or activities that violate the laws of any jurisdiction, including the sending of unsolicited, bulk commercial email (i.e., SPAM), etc.

    d.)     Client agrees that client retains the sole responsibility for the life and health of persons on the premise: for protecting against property and personal injury losses in the premises for both the Client and others, Client agrees that Acanthus Technology, LLC is not responsible for personal injury or other losses which are allegedly caused by improper operation or non-operation of the CCTV system or other computer / technology systems, including cases where these systems never function.  The client further agrees that Acanthus Technology LLC is not an insurer, and that insurance, if any covering personal injury and other losses shall be obtained by the client.  If there is any liability on Acanthus Technology LLC’s part, it will be limited to two hundred fifty dollars ($250) and this liability shall be exclusive; and that the provisions of this section shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to person or property, from performance or nonperformance of the obligations imposed by this contract, or from negligence, active or otherwise, of dealer, their agents, servants, assigns or employees.

    6.    RENEWALS & TERMINATION.

    a.)      Managed Services Provided (MSP), including physical security services, (if applicable). All MSP and physical security services are subject to the terms and duration outlined in agreement; upon the expiration of the terms, the Managed Services agreement will auto-renew with the same duration as the original agreement unless otherwise stated in writing. All contracts require a minimum twelve (12) month term for all services. Month-to-month terms are no longer applicable and all contracts will be auto-renewed at a minimum of twelve (12) months. Client may cancel Agreement auto-renewal by providing the Company written notice of termination a minimum of thirty (30) days before renewal date. Client may also terminate agreement at any time by paying the remaining monthly fees left in the agreement. Client acknowledges that monthly prices or rates may be subject to increases at time of renewal and new rates may apply for new term. Client will be notified of applicable rate changes before the notice of cancellation is due. Company reserves the right to terminate MSP agreement for any reason at any time by providing the Client party with thirty (30) days prior written notice.

    b.)     Residential Alarm Clients may terminate their alarm services without early termination fees if they sell their home or other extenuating circumstances outside their control cause them to have to cancel. To qualify, Client must have been an Acanthus client at least twelve (12) months prior and must give thirty (30) days written notice. Services will be cancelled thirty (30) days after written notice is received without early termination fees to the contract. Contracts are renewed for a twelve (12) month term with rates locked in until the next renewal. However, if the qualifications above are met, early termination penalties will be waived.

    c.)     Without Cause.  Either party may terminate separate Statements of Work for any reason by providing the other party with thirty (30) days prior written notice.  Any Statements of Work already approved and placed by Client are still subject to payment of all goods purchased and services that have been performed.

    d.)      Equipment Removal.  Upon termination of this Agreement for any reason, Client shall provide Company with access, during normal business hours, to Client’s premises (or any other locations at which Company-owned equipment is located) to enable Company to remove all Company-owned equipment, software, or other items from such premises (if any).   

    e.)     Transition.  In the event this Agreement is terminated for any reason whatsoever, all Client data held by Company shall be returned to the Client (provided that all fees due and owing to Company under this Agreement are paid to Company in full) in a commercially reasonable manner and time frame, not to exceed thirty (30) calendar days from the last day the agreement is active.  In the event that Client Requests Company’s assistance to transition to a new service provider, Company shall do so provided that (i) all fees due and owing to Company under this Agreement are paid to Company in full prior to Company providing its assistance to Client, and (ii) Client agrees to pay Company its then-current hourly rate for such assistance, with upfront amounts to be paid to Company as agreed upon between the parties.  Company shall have no obligation to store or maintain any Client data in Company’s possession or control following the termination of this Agreement.  Company shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Company’s deletion of Client data beyond the time frames described in this Section.

    f.)     Impact.  Termination of a Statement of Work shall not act as a termination of any other Statement of Work or as a termination of this Agreement as a whole.  Termination of this Agreement, however, shall act as a termination of all Statements of Work then pending, unless the parties agree otherwise in writing.

    g.)      No Liability:  Unless expressly stated in this Agreement, neither party shall be liable to the other party or any third party for any compensation, reimbursement, losses, expenses, costs or damages (collectively, “Damages”) arising from or related to, directly or indirectly, the termination of this Agreement for any reason, or for Damages arising from or relating to Company’s disclosure of information pursuant to any valid legal request to which Company is required to comply.  This waiver of liability shall include, but shall not be limited to, the loss of actual or anticipated profits, anticipated or actual sales, and of expenditures, investments, or commitments in connection with such party’s or any third party’s goodwill or business.

    7.    MISCELLANEOUS.

    a.)     Amendment.  No amendment or modification of this Agreement or any Statement of Work (including any schedules or exhibits) shall be valid or binding upon the parties unless such amendment or modification specifically refers to this Agreement, is in writing, and is signed by one of the Designated Contacts of each party.

    b.)     Time Limitations.  The parties mutually agree that any action for breach of or upon a matter arising out of this Agreement or any Statement of Work must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

    c.)     Severability.  If any provision hereof or any Statement of Work is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any Statement of Work shall be valid and enforceable to the fullest extent permitted by applicable law. 

    d.)     Other Terms.  Company shall not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into a duly executed Statement of Work.  In the event any provision contained in this Agreement is held to be unenforceable in any respect, such unenforceability shall not affect any other provision of this Agreement, and the Agreement shall be construed as if such an unenforceable provision or provisions had never been included in this Agreement. 

    e.)     No Waiver.  The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences.

    f.)      Merger.  This Agreement, together with any Statement(s) of Work, sets forth the understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.  Any document that is not expressly and specifically incorporated into this Agreement or Statement of Work shall act only to provide illustrations or descriptions of Services to be provided, and shall not act to modify this Agreement or provide binding contractual language between the parties.  Company shall not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.

    g.)     Force Majeure.  Company shall not be liable to Client for delays or failures to perform its obligations under this Agreement or any Statement of Work because of circumstances beyond its reasonable control.  Such circumstances include, but shall not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, acts of God, or any other events beyond the reasonable control of Company. 

    h.)     Non-Solicitation.  Client acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement or from last date of work done for Client, Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Company’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Company, or recruit, solicit or otherwise influence any employee or agent of Company to discontinue such employment or agency relationship with Company. In the event that Client violates these terms, the parties acknowledge and agree that the damages to Company would be difficult or impracticable to determine, and agree that in such event, as Company’s sole and exclusive remedy therefore, Client shall pay Company as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with Client (including any signing or other bonus).

    i.)      Insurance.  Company and Client shall each maintain, at their own expense, all insurance reasonably required in connection with this Agreement or any Statement of Work, including but not limited to, workers compensation and general liability.

    j.)      Records. Photos or other records of services performed may be taken by the Company for use in their records, evaluations, portfolio or marketing material; these photos are the property of the Company.  If Client does not approve of the use of these photos, said restriction must be requested in writing by client before start of project. All services provided by Acanthus Technology will be pursuant to the direction of Client.

    k.)      Governing Law; Venue.  This Agreement and any Statement of Work shall be governed by, and construed according to, the laws of the State of Illinois. 

    l.)      Independent Contractor.  Each party is an independent contractor of the other, and neither is an employee, partner or joint venture of the other.

    m.)    Subcontractors.  Company may subcontract part or all of the Services to one or more third parties provided, however that Company shall be responsible for, and shall guarantee, all work performed by any Company-designated subcontractor as if Company performed such work itself.  Notwithstanding the foregoing, Company shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Client on a statement of work.

    n.)     Counterparts.  The parties may execute and deliver this Agreement and any Statement of Work in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement.  Each party acknowledges and agrees that this Agreement may be executed and transmitted to the other party via electronic means.  Accordingly, a party may execute and deliver this Agreement (or any Statement of Work) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party shall be entitled to rely upon the apparent integrity and authenticity of such signature for all purposes.

    o.)     Standard Terms. The terms of this Agreement referred to herein will govern all transactions between Company and Client. Client accepts these Standard Terms with Company by executing this Agreement and reaffirms these Standard Terms and Conditions by engaging Company to perform or procure any services. These Standard Terms and Conditions can be modified or changed at any time. Any changes or updates will be communicated via email. Continuation of services will be considered acceptance of the Standard Terms and Conditions.

     



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