HillTown Tech, LLC Managed Service Plan Agreement

This MANAGED SERVICE PLAN AGREEMENT (“Agreement”) is entered on the date of purchase (the “Effective Date”), by and between HillTown Tech, LLC, having a business address at 418 Broadway STE Y, Albany, NY 12207 (“HillTown Tech”), and the Client, having a business address as provided in their membership application (the “Client”). HillTown Tech and Client may be referred to herein individually as “a Party” and together as “the Parties” herein. In consideration of the obligations, agreements, and consideration set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

Scope of Services

The Client hereby retains HillTown Tech, and HillTown Tech hereby agrees to perform in a professional manner the services as described on the HillTown Tech website at [insert website URL] (the “Managed Services”).

Term

The Term of this Agreement shall commence on the Effective Date and continue for three (3) years and shall automatically renew for one (1) year terms, unless either Party terminates the Agreement sixty (60) days prior to the renewal of the term. HillTown Tech reserves the right to modify or change the terms of this agreement.

Start-Up Fees & Payment

Start-up fees, as quoted to start the Managed Services, are due and payable with the signing of this Agreement. HillTown Tech shall remit invoices to the Client for the Managed Services, which shall be due and payable net fifteen (15) days. The Client may only pay HillTown Tech’s invoices by check, ACH bank transfer, or credit card (+2% for credit cards). If the Client fails to pay HillTown Tech within five (5) business days from the date payment is due, then HillTown Tech may, in its sole discretion, assess a late payment charge at the rate of five percent (5%) of the outstanding balance per month, or the maximum rate allowed by applicable law, whichever is less, and suspend service.

Taxes

All amounts due and payable hereunder will be exclusive of applicable charges, fees, levies, imposts, duties, tariffs, or other assessments imposed by or payable to any federal, state, local, or foreign tax or governmental authority, including without limitation sales, use, goods, services, value added, transfer, customs, personal property, stamp duty, excise, withholding, and other obligations of the same or similar nature (individually and collectively, “Taxes”) based or measured thereon. Client shall be responsible for the payment of all such Taxes, excluding Taxes based on HillTown Tech’s income. Client will indemnify and hold HillTown Tech harmless from any current or future obligation, including due to a change in legislation, to pay to any governmental entity any employer statutory Taxes, withholding Taxes, social security Taxes, or any other Taxes in connection with HillTown Tech’s performance of the Managed Services under this Agreement, and from any and all damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefrom.

HillTown Tech Obligations

(a) HillTown Tech shall use commercially reasonable efforts in providing the Managed Services as described on its website and provide support to mitigate Client operational issues.
(b) HillTown Tech shall respond to Client service requests submitted by phone (518-553-0556) or via email (support@hilltowntech.com).
(c) HillTown Tech shall provide the Managed Services remotely between the hours of 10:00 am – 5:00 pm Eastern Standard Time, Monday through Friday, excluding all New York State and federal holidays, unless Client requests on-site services, which HillTown Tech shall provide on mutually agreeable terms. Emails received outside of office hours will be collected, but no action can be guaranteed.
(d) HillTown Tech shall use commercially reasonable efforts to respond to Client service requests in a timely manner.

Client Obligations

(a) The Client shall use the equipment and software as authorized, in accordance with HillTown Tech’s operating instructions and associated documentation, with suitable operating supplies.
(b) The Client shall ensure that the software or equipment provided by HillTown Tech is used in a proper manner by competent, trained persons only.
(c) The Client shall not alter, adapt, or modify the software or equipment provided by HillTown Tech except where previously agreed in writing by HillTown Tech.
(d) The Client shall cooperate with HillTown Tech personnel in the diagnosis, investigation, and correction of any fault in the software or equipment provided by HillTown Tech. The Client shall make available to HillTown Tech all information, facilities, and services reasonably required by HillTown Tech to enable it to perform the Managed Services.
(e) The Client must designate an authorized individual to make changes to the account or request password modifications for themselves or other users.
(f) The Client has no ownership claim to any software or equipment provided by HillTown Tech, unless agreed in writing by HillTown Tech senior leadership.
(g) The Client is prohibited from reselling any software or equipment provided by HillTown Tech, unless agreed in writing by HillTown Tech senior leadership.
(h) The Client shall ensure that its use of the Managed Services complies with all applicable federal, state, and local data protection and privacy laws, including but not limited to safeguarding any data it provides or processes through the Managed Services.
(i) The Client shall maintain, during the Term, appropriate insurance coverage, including general liability,*.

System: professional liability, and cybersecurity insurance, to cover its obligations and potential liabilities under this Agreement. Upon request, Client shall provide HillTown Tech with proof of such insurance.

Ownership and Data

(a) Ownership. Client acknowledges and agrees that this Agreement grants Client no title or right of ownership in or to the Managed Services, or any component thereof, or to any associated materials including, but not limited to, any documentation, including, but not limited to, all user manuals and other documentation supplied by HillTown Tech to Client whether provided in electronic form or otherwise, including training manuals, program listings, data models, flow charts, logic diagrams, functional specifications, instructions, etc., or intellectual property. Client shall not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of HillTown Tech or its licensors.
(b) Data. Ownership of material data for the Managed Services shall remain with the Client. Such data includes Client’s corporate data, including, but not limited to, registration data, supplied and input by or on behalf of Client (“Client Data”). HillTown Tech agrees not to use any Client Data for any purpose other than to perform the Managed Services and fulfill its obligations under this Agreement.
(c) Destruction of Data. In performance of services, it is possible that data files on magnetic media may be destroyed. HillTown Tech will take commercially reasonable precautions to avoid destruction of data, but will not be held responsible in the event that such destruction occurs except in the case of gross negligence on the part of HillTown Tech.

Confidential Information

(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means all information that is not generally known by the public and that: (i) is disclosed by a Party (the “Disclosing Party”) to the other Party (the “Recipient”), or that is learned, discovered, developed, conceived, originated, or prepared by HillTown Tech during the process of performing the Managed Services, and (ii) relates directly to the business, technology, and strategies of the Disclosing Party. The term “Confidential Information” shall include, but shall not be limited to: inventions, discoveries, trade secrets, and know-how; computer software code, designs, routines, algorithms, and structures; product information; research and development information; lists of clients and other information relating thereto; financial data and information; business plans and processes; and any other information of the Parties. Recipient shall use Confidential Information of the Disclosing Party only as necessary for the performance of this Agreement.
(b) Confidential Obligations. During the term of this Agreement, and at all times thereafter, the Recipient agrees that it will not disclose to others, use for its own benefit or for the benefit of anyone other than the Disclosing Party, or otherwise appropriate or copy, any Confidential Information, except as required in the performance of the Services. The obligations of Recipient under this paragraph shall not apply to: (i) any information that becomes public knowledge through no fault of the Recipient; (ii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; (iii) is independently developed by Recipient or its representatives without the use of Confidential Information; or (iv) is required to be disclosed by operation of law or by an instrumentality of the government, including but not limited to any court, tribunal, or administrative agency; provided that, in the case of any disclosure required by court order, the Recipient shall give the Disclosing Party as much advance notice as is reasonably practicable under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense to prevent disclosure. In the event of any breach under this paragraph, the Recipient shall indemnify the Disclosing Party against all claims, liabilities, costs, damages, fees, and expenses (including reasonable attorneys’ fees) arising from any breach of this paragraph. This paragraph shall survive the termination of this Agreement.
(c) Publicity. Client shall not use HillTown Tech’s names, symbols, trademarks, or other marks without prior written consent. Notwithstanding the above, HillTown Tech may publicly refer to Client as a client of HillTown Tech, including on HillTown Tech’s and affiliate websites and in sales presentations.

Non-Solicitation

During the Term and for one (1) year thereafter, the Client shall not, without the prior written consent of HillTown Tech, directly or indirectly solicit or hire any employee or contractor of HillTown Tech who was involved in the performance of this Agreement.

Termination

(a) HillTown Tech Events of Termination. HillTown Tech may suspend the performance of the Managed Services or terminate this Agreement upon the following events: (i) upon thirty (30) days prior written notice to the Client without cause; (ii) upon five (5) days written notice to the Client of a breach of a representation, warranty, or covenant under this Agreement, including, but not limited to, payment for said Services, such breach has not been cured within five (5) days of said notice; (iii) upon the Client’s commencement of an involuntary proceeding or its filing of a petition in a court of competent jurisdiction seeking: (A) relief in respect of the Client or of a substantial part of the Client’s property or assets under any federal or state bankruptcy, insolvency, receivership, or similar law; or (B) the appointment of a receiver, trustee, custodian, or similar official for the Client or for a substantial part of the Client’s property or assets; and either such proceeding or petition shall continue for an undismissed period of ninety (90) days or an order or decree approving or ordering any of the foregoing shall have been entered; or (iv) upon the Client: (A) voluntarily commencing any proceeding or filed any petition seeking relief under any federal or state bankruptcy, insolvency, receivership, or similar law; (B) consenting to the institution of, or failed to have contested in a timely and appropriate manner, any proceeding for the filing of any petition described herein; (C) applying for or consented to the appointment of a receiver, trustee, custodian, or similar official for itself, or for a substantial part of its property or assets; or (D) making a general assignment for the benefit of creditors.
(b) Client Events of Termination. Client may terminate this Agreement upon the following events: (i) upon sixty (60) days prior written notice to HillTown Tech without cause; (ii) upon five (5) days written notice to HillTown Tech of a breach of a representation, warranty, or covenant under this Agreement, such breach has not been cured within five (5) days of said notice; (iii) upon HillTown Tech’s commencement of an involuntary proceeding or its filing of a petition in a court of competent jurisdiction seeking: (A) relief in respect of HillTown Tech or of a substantial part of HillTown Tech’s property or assets under any federal or state bankruptcy, insolvency, receivership, or similar law; or (B) the appointment of a receiver, trustee, custodian, or similar official for HillTown Tech or for a substantial part of HillTown Tech’s property or assets; and either such proceeding or petition shall continue for an undismissed period of ninety (90) days or an order or decree approving or ordering any of the foregoing shall have been entered; or (iv) upon HillTown Tech: (A) voluntarily commencing any proceeding or filed any petition seeking relief under any federal or state bankruptcy, insolvency, receivership, or similar law; (B) consenting to the institution of, or failed to have contested in a timely and appropriate manner, any proceeding for the filing of any petition described herein; (C) applying for or consented to the appointment of a receiver, trustee, custodian, or similar official for itself, or for a substantial part of its property or assets; or (D) making a general assignment for the benefit of creditors.
(c) Effect of Termination. Upon termination of this Agreement, Client shall pay all amounts then due to HillTown Tech before the last day of termination. HillTown Tech shall complete the Managed Services already paid for by the Client. Termination of this Agreement shall also automatically terminate all pending services under it. The Client shall be billed for any Client-specific equipment in inventory at the termination of this Agreement. At Client’s request, HillTown Tech shall provide reasonable assistance to transition the Managed Services to Client or a third party, including returning or transferring Client Data in a mutually agreed format within thirty (30) days of termination, subject to reasonable fees for such services as agreed by the Parties.

Limitation of Liability

Except as otherwise stated in this Agreement, HillTown Tech provides the Managed Services to the Client “As Is” and without warranty of any kind, including compliance. In no event shall HillTown Tech be liable to the Client for any consequential, indirect, incidental, special, punitive, or exemplary damages or losses, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence, tort, strict liability, arising under this Agreement, loss of data, or any performance under this Agreement. To the extent permitted by law, HillTown Tech’s liability shall be limited to the amount of fees paid by the Client for HillTown Tech’s services for the two (2) months immediately preceding the event giving rise to such loss, damage, claim, or liability. The foregoing notwithstanding, HillTown Tech shall be liable to Client for liquidated damages for new system orders if an order is not delivered by the required delivery date, in the amount of ten (10%) of the total purchase price.

Indemnification

(a) The Client agrees to indemnify, defend, and hold harmless HillTown Tech, and its officers, directors, principals, members, managers, employees, subcontractors, agents, representatives, successors, and assigns from and against any damage, claim, loss, expense (including reasonable attorneys’ fees and damage to any person or property), occurring as a result of (i) the Client’s use of HillTown Tech’s Managed Services, or use by those authorized by the Client of HillTown Tech’s Managed Services; (ii) the Client’s handling, storage, transmission, or possession of information, data, messages, or other content or assets on HillTown Tech’s systems or network, on Client systems or network that are installed, managed, or otherwise serviced by HillTown Tech, or on third-party systems and networks that HillTown Tech uses to provide its services, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission, or possession of information that contains viruses, malware, or other destructive code, media, or any unlawful content; (iii) the Client’s breach of any software licensing requirements of third parties; (iv) the Client’s failure to comply with any provision of this Agreement; or (v) the Client’s failure to obtain permits, licenses, or consents that Client may be required to obtain to enable HillTown Tech to provide its Managed Services (e.g., landlord permissions, wiring permits, etc.).
(b) HillTown Tech agrees to indemnify and defend the Client, its directors, officers, employees, agents, and successors against third-party claims alleging that HillTown Tech’s Managed Services as provided infringe any third-party patent or copyright or contain misappropriated third-party trade secrets. HillTown Tech’s obligations under this section will not apply to the extent that the infringement or violation is caused by (i) functional or other specifications that were provided or requested by the Client, or (ii) Client’s continued use of infringing services after HillTown Tech provides reasonable notice to the Client of the infringement. For any third-party claim that HillTown Tech receives, or to minimize the potential for a claim, HillTown Tech may, at its option and expense, either: (i) procure the right for the Client to continue using the services in question; (ii) replace or modify the services with comparable services; or (iii) terminate the services. The provisions of this Section state the entire liability and obligations of the indemnifying party, and the exclusive remedy of the indemnified party, with respect to any of the claims identified herein.

Force Majeure

Notwithstanding any other provision of this Agreement, if either Party’s performance of this Agreement or of any obligation hereunder is interfered with, delayed, restricted, or prevented, in whole or in part, by reason of an event of Force Majeure (as defined below), then said Party, upon giving notice to the other Party, shall be excused from such performance to the extent and for the duration of such interference, delay, restriction, or prevention, and the Term shall continue and be extended for a like period of time. “Force Majeure” means any act or condition beyond the reasonable control of either Party, whether or not similar to the matters or conditions herein specifically enumerated, and includes: acts of God or the elements (including fire, earthquake, explosion, flood, epidemic, or any other casualty or accident); strikes, lockouts, or other labor disputes; war, terrorism, sabotage, civil strife, or other violence; the effect of any law, proclamation, action, demand, or requirement of any government agency.

Dispute Resolution

If a claim or dispute between the parties arises out of this Agreement or its performance, the parties agree to endeavor in good faith to resolve it equitably through negotiation, or if that fails, through non-binding mediation under the procedural rules of the American Arbitration Association, before having recourse to the courts. However, prior to or during negotiation or mediation, either party may initiate litigation that would otherwise become barred by an applicable statute of limitations. Notwithstanding the foregoing, HillTown Tech may choose to pursue a claim in court if the Client fails to timely pay fees due. HillTown Tech may assign your account for collection, and the collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by law.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Any legal action or proceeding arising under this Agreement shall be brought exclusively in the federal or state courts located in Albany County, New York, and the Parties hereby consent 到个人管辖权和场地。

Entire Agreement

(a) This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes each course of conduct previously pursued or acquiesced. No course of performance or other conduct subsequently pursued or acquiesced in, and no oral agreement or representation subsequently made by the Parties hereto, whether or not relied or acted upon, and no usage of trade, whether or not relied or acted upon, shall amend this Agreement or impair or otherwise affect any obligation pursuant to this Agreement or any rights and remedies pursuant to this Agreement. The recitals and any schedules or exhibits attached hereto are expressly incorporated herein by reference and shall be deemed, construed, and interpreted as part hereof.
(b) This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties hereto, their respective successors, and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

Survival

The provisions of this Agreement relating to Confidential Information, Indemnification, Limitation of Liability, Dispute Resolution, Governing Law, and any other provisions which by their nature are intended to survive termination shall remain in effect after the termination of this Agreement.

Miscellaneous

(a) Interpretation. Each Party acknowledges and represents that it has been advised to seek, and has sought, the advice of independent counsel with respect to the subject matter. The Parties acknowledge, understand, represent, and agree that the terms and conditions of this Agreement are the result of their mutual negotiation and, as such, no provision shall be more strictly construed against a Party on the basis that such Party was responsible for drafting such provision.
(b) Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party.
(c) Waiver. Except as expressly stated herein, neither this Agreement nor any terms hereof may be waived, discharged, or terminated by HillTown Tech unless such waiver, discharge, or termination is in writing signed by HillTown Tech.
(d) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without such provision, and this Agreement shall be construed to the fullest extent possible as to give effect to the intentions of the provision found to be unenforceable or invalid. With respect to any such term or other provision deemed invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) Costs of Enforcement; Attorneys’ Fees. In the event of any litigation, arbitration, or other dispute arising as a result of, in connection with, or by reason of this Agreement, the substantially prevailing Party in any such litigation, arbitration, or other dispute shall be entitled to, in addition to any other damages assessed, its reasonable attorneys’ fees and all other costs and expenses incurred in connection with settling or resolving such dispute, including costs incurred by HillTown Tech in collecting payments from Client.
(f) Notices. Any notices required or permitted hereunder will be given to HillTown Tech at 418 Broadway STE Y, Albany, NY 12207, and to the Client at the address provided in their membership application or as updated in writing. Such notice will be deemed given upon email, upon personal delivery to the appropriate address, or if sent by overnight mail, one (1) day after the date of mailing.
(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, shall be deemed to constitute one and the same document. This Agreement may be executed and delivered by customary or other commercially acceptable electronic means (including DocuSign or similar service, or any other electronic signature complying with the U.S. federal ESIGN Act of 2000, as the same may be amended, from time to time); a manual or electronic signature so affixed to this Agreement whose image shall have been transmitted via facsimile, email, or other customary electronic means shall have the same force and effect as original ink signature for all purposes.

IN WITNESS WHEREOF, the Parties hereto have executed or caused this Agreement to be duly executed by their authorized representative as of the Effective Date.