Terms of service

1. INTRODUCTION

This Terms of Service ("ToS") agreement is entered into between the customer ("The Customer") and Bender Information Technology Services, L.L.C. ("The Consultant"). This ToS becomes effective upon the customer's initial contact with The Consultant via phone, email, or web form submission. The purpose of this ToS is to outline the terms and conditions under which The Consultant will provide services to The Customer. By initiating contact, you agree to comply with and be bound by the terms and conditions outlined herein.

2. DEFINITIONS

  1. The Consultant: Refers to Bender Information Technology Services, L.L.C.

  2. The Customer: Refers to any individual, business, or entity that initiates contact with The Consultant.

  3. Services: Refers to all services provided by The Consultant, as described in this ToS.

  4. Contact: Refers to any interaction initiated by The Customer via phone, email, or web form submission.

  5. Service Location: Refers to the physical location that in-person Services would occur.

3. SCOPE OF SERVICES

This ToS outlines the terms under which The Consultant will provide information technology consulting and computer environment management services. The Services commence upon initial Contact and continue until terminated by either party as outlined in the "Termination" section of this ToS.

4. AUTHORIZATION OF ACCESS TO COMPUTER SYSTEMS & SERVICE LOCATION

By initiating Contact with The Consultant, The Customer grants The Consultant a non-exclusive, revocable right to view, access, and manage The Customer’s computer systems, including hardware, software, networks, and data, solely for the agreed-upon services. The Consultant must comply with all applicable laws, regulations, and known Customer policies and commits to maintaining the confidentiality, integrity, and availability of the The Customer’s systems. If in-person Services would reasonably be expected to be provided, explicit authorization to access the Service Location is also granted. The specific obligations of the Consultant are as follows:

  1. Access and Management: The Consultant is granted a non-exclusive, revocable right to view, access, and manage The Customer's computer systems, solely for the agreed-upon services, physically or remotely.

  2. Compliance with Industry Best Practices: The Consultant must comply with all applicable laws, regulations, known Customer policies, and Industry Best Practices. In case of ambiguity, the CIS Benchmarks & Recommendations shall be referred to.

  3. Confidentiality: The Consultant commits to maintaining the confidentiality, integrity, and availability of The Customer's systems, following Industry Best Practices.

5. Payment for Commissioned Services

The Customer agrees to pay for all Services commissioned from The Consultant. Payment terms, including but not limited to pricing, invoicing, and payment schedules, will be as specified by The Consultant at the time of commissioning the Services. The Customer agrees to render payment through a debit card or credit card in lack of other payment options. 

6. Data Security

The Consultant shall implement reasonable security measures to protect The Customer's data but does not assume liability for data loss or corruption. The Customer is responsible for maintaining backups of their data.

7. Confidentiality

Both parties agree to maintain the confidentiality of all proprietary information accessed during the provision of Services. Neither party shall disclose such information to third parties without written consent from the other party.

8. Termination

  1. Termination by The Consultant: The Consultant reserves the right to terminate this ToS and cease the provision of Services with a written notice to The Customer.

  2. Termination by The Customer: The Customer may terminate this ToS by providing a written notice to The Consultant. All outstanding payments for commissioned Services must be settled before termination takes effect.

9. Limitation of Liability

The Consultant's liability for any claim arising out of this ToS shall be limited to the amount paid by The Customer for the Services in the billing period where the claim originated.

10. Governing Law and Dispute Resolution

  1. Choice of Law: The laws of the state of Arizona govern this agreement (without giving effect to its conflicts of law principles).

  2. Choice of Forum: Both parties consent to the personal jurisdiction of the state and federal courts in Pima County, Arizona.

  3. Dispute Resolution: Any disputes arising out of this ToS shall be resolved through personal agreements first. If personal agreements fail, the dispute shall be settled in Pima County Courts.

11. INDEMNIFICATION

At all times after the effective date of this agreement started by Contact, The Customer shall indemnify the Consultant from all Claims that the Consultant may incur arising from:

  1. The Customer's operation of its business or personal activities;

  2. The Customer's breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or

  3. The Customer's breach of any of its obligations or representations under this agreement. 

12. Force Majeure

A party will not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party's reasonable control (each a "Force Majeure Event"). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:

  1. notify the other party of the Force Majeure Event and its impact on performance under this agreement; and

  2. use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this agreement.

13. AMENDMENTS

This Terms of Service may only be amended, modified, or updated by The Consultant. No amendment to this agreement will be effective unless it is in writing and signed by The Consultant or its authorized representative. The Customer has no authority to alter, amend, or modify this Terms of Service. No notification is required when The Consultant updates or changes the Terms of Service.

14. ASSIGNMENT AND DELEGATION

  1. No Assignment: Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.

  2. No Delegation: Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.

  3. Enforceability of an Assignment or Delegation: If a purported assignment or purported delegation is made in violation of this section, it is void.

15. COUNTERPARTS; ELECTRONIC SIGNATURES

  1. Counterparts: The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.

  2. Electronic Signatures: This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures. Contact to The Consultant is considered consent by facsimile under this Agreement.

  3. Acceptance of Terms: Any form of Contact with The Consultant, including but not limited to phone calls, emails, or web form submissions, constitutes acceptance of these Terms of Service. Contact to The Consultant is considered consent by facsimile under this Agreement.

16. NOTICES

  1. Writing and Permitted Delivery Methods: Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.

  2. Addresses: In the absence of a provided address, the primary business location of the Company shall be ascertained through a reputable search engine, and such identified address shall serve as the designated address for the purposes of this agreement. A party shall address notices under this section to a party at the following address:


    Bender Information Technology Services
    11201 N Tatum Blvd Ste 300
    PMB 122716
    Phoenix, Arizona 85028-6039 US

  3. Effectiveness: A notice is effective only if the party giving notice complies with subsections 1 and 2 and if the recipient receives the notice.

17. HEADINGS

The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.

18. NECESSARY ACTS; FURTHER ASSURANCES

Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.

19. CYBERSECURITY PROVISION

Unless Cybersecurity and Disaster Recovery services are specifically contracted through a separate Consultant Services Agreement, no service of that type will be provided in any fashion or instance. Should these services be contracted, the Consultant's role is confined to the provision of risk mitigation and disaster recovery services, focusing on the implementation of preventive measures and the restoration of systems in the event of a breach, failure, or disaster. It is expressly understood that the Consultant's services are aimed at reducing the likelihood of unauthorized access, loss, or damage, but do not guarantee absolute prevention or immunity from such events. Consequently, the Consultant shall not be liable for any unauthorized access, loss, or damage to the Company's systems, even if Cybersecurity services are contracted. The Consultant's responsibilities do not extend to providing Cyber Insurance services, assuming liability for damages caused by external entities, or engaging in risk transference. The Consultant's services are designed to assist in managing, reducing, and mitigating risk, not to insure or indemnify against potential losses. Cyber Insurance services are not and will not ever be provided under any circumstance.

20. SEVERABILITY

If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.

21. Customer Responsibilities

The Customer is responsible for adhering to the following obligations and agreements:

  1. Response Time: The Customer shall respond to any communications from The Consultant within a period of 5 business days.

  2. Payment Terms: All payments for flat-rate Services rendered by The Consultant are due immediately prior to the performance or delivery of the Services. All payments for hourly Services rendered by The Consultant are due immediately following the performance or delivery of the Services.

  3. Nonpayment or Late Fees: Payments not received, altered, rejected at a later date, or late shall incur a penalty of 50% of the outstanding amount, which shall be added to the subsequent payment.

  4. Emergency & After Hours Services: The Customer understands and agrees that "Emergency Services" are defined as those requiring immediate attention from The Consultant, where deferral of troubleshooting to a scheduled time is not acceptable to the Customer. "After-Hours Services" are defined as any Services performed outside of standard business hours, Monday through Friday, 8:00 AM to 5:00 PM Mountain Standard Time (MST). Both Emergency and After-Hours Services shall be subject to a minimum charge of two (2) hours and shall be billed at The Consultant's Emergency and After-Hours rates.

  5. Minimum Hours: Each separate communication to The Consultant requesting the performance of Services shall be billed a minimum of one (1) hour.

  6. Cancellation Policy: The Customer acknowledges and agrees that any cancellation of scheduled Services must be communicated to The Consultant in writing at least 24 hours prior to the scheduled service time. Failure to provide such notice will result in a cancellation fee equivalent to 50% of the estimated cost of the scheduled Services, which will be billed to the Customer's account. 

22. NATURE OF RELATIONSHIP; INVENTIONS

(A) Independent Contractor Status:

  1. The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance of such authority;

  2. The Consultant has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. The Consultant or the Consultant's staff shall perform the Services, and the Company is not required to hire, supervise, or pay any assistants to help the Consultant perform those Services. The Consultant shall provide insurance coverage for itself and its staff.

(B) Consultant Ownership and Rights: Notwithstanding any other provision of this Agreement, The Consultant shall retain full and complete rights and ownership of any and all work, IP, document, property, or product resulting from The Consultant's work under this Agreement, including but not limited to software, scripts, programs, systems, methods, documents, information relating to the Consultant or its current or proposed business, financial statements, budgets and projections, customer identifying information, potential and intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media (collectively, the "Consultant Inventions"). The Consultant may utilize, redistribute, resell, or license the Consultant Inventions at its sole discretion. The Customer shall have a non-exclusive, non-transferable license to use the Consultant Inventions solely for its internal business purposes, subject to the terms and conditions of this Agreement. The only circumstance under which The Customer would acquire any rights or ownership in regards to the Consultant's output is if The Customer and The Consultant enter into an entirely separate Software Development Agreement, which shall govern the rights and obligations of the parties with respect to such commissioned work. Except as expressly provided in such a Software Development Agreement, The Customer shall have no right or interest in the Consultant Inventions, and The Consultant shall be the sole author and owner of all copyrights and other intellectual property rights in the Consultant Inventions.

(C) Non-Assignment of Consultant Inventions: The Consultant retains all rights and interests in any and all work, IP, property, or product resulting from The Consultant's work under this Agreement, including but not limited to software, scripts, programs, systems, methods, documents, information relating to the Consultant or its current or proposed business, financial statements, budgets and projections, customer identifying information, potential and intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media (collectively, the "Consultant Inventions"). No rights or interests in the Consultant Inventions shall be assigned to the Customer, except as expressly provided in a separate Software Development Agreement between the parties. The Customer's rights to use the Consultant Inventions shall be limited to a non-exclusive, non-transferable license as provided in this Agreement.

(d) No Obligation for Patent and Copyright Registrations: The Consultant shall have no obligation to assist the Customer in securing any copyrights, patents, mask work rights, or other intellectual property rights relating to the Consultant Inventions in any jurisdiction. The Consultant shall not be required to disclose any information or data with respect to the Consultant Inventions, sign any applications or instruments, or take any other action to apply for or obtain such rights for the Customer. No provision of this Agreement shall be construed to confer any right or interest in the Consultant Inventions to the Customer, its successors, assigns, or nominees, except as expressly provided in a separate Software Development Agreement. The Consultant does not designate or appoint the Customer or its agents as the Consultant's agents or attorneys in fact for any purpose related to the Consultant Inventions.

23. No Waiver

The failure of The Consultant to enforce any provision of this Terms of Service shall not be construed as a waiver or limitation of The Consultant's right to subsequently enforce and compel strict compliance with every provision of this Terms of Service.