Note: Whereby Client has an established Technical Services Agreement (TSA) with Banshee Networks, Inc. (Contractor), those terms shall apply. Otherwise Client acknowledges that by agreeing to use the services of Contractor, Client agrees to be bound by the following Terms of Service. These terms are subject to change by Banshee Networks, Inc. at any time.
Warranties and Disclaimers:
Contractor warrants and represents that Contractor’s services will be of professional quality, conforming to generally accepted practices of computer technicians.
Client acknowledges and agrees that any recommendations by Contractor of software or hardware in no way constitute or may be construed as an express or implied warranty by Contractor of any kind, including, but not limited to, of merchantability, performance, or fitness for particular purpose. Client agrees that all hardware and software sales by Contractor to Client are final, provided as-is, and such sales are non-returnable and non-refundable. Client’s remedies shall be limited solely to those provided by the manufacturer of the said product.
With respect to security software or hardware, Client acknowledges and agrees that Contractor makes no warranty, express or implied, that Client is safe from intrusion as a result of the installation of any such product.
With respect to the review by Contractor of Client’s existing systems, including software and hardware, Client acknowledges and agrees that any findings and/or recommendations provided by Contractor in connection with any such review shall not constitute or be construed as a warranty of any kind of the future performance of Client’s systems.
Client acknowledges and agrees that Contractor shall have no ongoing or additional responsibility or liability with respect to future performance of any hardware or software installed by Contractor.
Client acknowledges and agrees that it is at all times responsible for its own data, and that it shall be required to provide a full and comprehensive backup of said data prior to Contractor performing any of the Services. Contractor shall have no liability or responsibility for the loss of data, whether resulting from Client’s failure to perform a backup of said data or any other cause. Client acknowledges and agrees that it may request that Contractor perform a backup of Client’s data, but that the performance by Contractor of this task shall not under any circumstances constitute or be construed as a certification by Contractor of the integrity of the backup of the data, or create responsibility or liability of any kind on the part of Contractor in the event of any loss of or damage to Client’s data.
Client acknowledges and agrees that Contractor shall have no liability or responsibility for the failure or performance of any system, whether hardware or software, on which Contractor performs services but that was not initially installed by Contractor. Contractor will only be liable to Client for failure of any Contractor installed hardware or software if such failure is solely due to Contractor’s gross negligence.
Contractor’s liability under this Agreement shall be limited to the value of the Services provided in the three (3) months prior to which any performance issue arose.
Contractor shall have no liability or responsibility for other damages of any kind, known or unknown, foreseeable or otherwise, including but not limited to exemplary, incidental or consequential damages and/or losses of any kind, including business interruption issues, arising out of or relating to the performance by Contractor of the Services.
Contractor will utilize commercially reasonable efforts to ensure a thorough evaluation for any forensic audit but Client understands and agrees that a 100% guarantee by Contractor would be cost prohibitive given the nature of the task. Therefore, Client is encouraged to retain a secondary firm to provide a supplemental analysis for any forensic audit. Further, Client is strongly encouraged to obtain business interruption insurance including coverage for lost data, data breaches, viruses, malicious code, and the like.
Due to the litigious nature of forensics work, as collected evidence is often used by clients to take action (including but not limited to disciplinary action and termination) against an employee or other third-party, Client agrees to hold harmless, indemnify and defend Contractor in the event that Contractor is subpoenaed, named in a law suit, required to appear in any legal proceeding related to the Client taking any such action(s) or must expend any time, energy or resources on behalf of Client due to such work. Client agrees to compensate Contractor for any legal fees and any expenses incurred during the course of such activities within thirty (30) days of the submission of such expenses by Contractor to Client. Client further understands and agrees that any time that Contractor is required to spend participating in, or traveling to and from, such legal activities is billable to Client at Contractor’s standard rates.