Last Updated May 11, 2022
A. AGREEMENT TO TERMS
These Terms and Conditions constitute a legally binding agreement made between you, defined as the entity signing Televon’s Technology Service Agreement (hereafter referred to as “Client”) and Plenteous Consulting Services, LLC (dba Televon) (hereafter referred to as “Televon”). You agree that by signing the Technology Services Agreement, you have read, understood, and agreed to be bound by the Definitions, Terms and Conditions listed in both the Technology Services Agreement and this Performance Based Services Terms and Conditions (hereafter referred to as “Terms and Conditions”) and that the combined Technology Services Agreement and these Terms and Conditions constitutes the entire agreement (hereafter referred to as the “Agreement”) between Client and Televon.
Televon reserves the right, in its sole discretion, to make changes or modifications to these Terms and Conditions at any time and for any reason. We will notify Client about any changes by providing thirty (30) day notice to Client representative named in the mutually signed Technology Services Agreement or the Client designated replacement for the Client representative.
Whenever used in this Agreement, the following terminologies shall have the following meanings:
- Supplier: vendor that provides technology (or related) services, goods and/or
- System: the Client’s technology services and systems, including data, software, internet, data network, Cloud management, and cellular.
- Recommendation: a written recommended course of action by Televon to Client to reduce Client’s costs relating to Client’s Technology System, which may include Client’s anticipated savings or cost reductions if Client follows such recommendation and the approximate cost to Client to realize such savings or cost reduction by following such Recommendation.
- Optimization Change: a change to Client’s Technology System having a benefit of lowering Client’s costs resulting from a Recommendation or realized as a result of Televon’s instigation, negotiation, and/or efforts in its performance of this Agreement.
- Operational Change: a change to Client’s Technology System with the primary purpose of supporting Client’s operational needs that may also have a secondary benefit of lowering Client’s costs.
- Information: equipment records, invoices, contracts and other related information, as well as written authorization for Televon to receive all such records and information directly from Suppliers, to include, but not limited to, direct login Access to Client’s account with its Suppliers.
- Acceptance Period: the period beginning on the date on which Televon submits a Recommendation to Client and ending on the date that is 24 months thereafter.
- Value-Added Reseller (VAR): Televon is an authorized Value-Added Reseller (VAR) with some Suppliers. If Televon is engaged as a VAR for the Client, then Televon will act as the contracting entity between Client and Supplier and may provide billing, installation, and on ongoing support to Client.
C. CLIENT OBLIGATIONS
- The Client agrees to provide Televon with Account Access throughout the Term of this Agreement, and all Acceptance Periods and Optimization Periods, and pre-authorizes and pre-approves Televon to identify and pursue, on Client’s behalf, possible refunds or credits due from Suppliers’ billing errors or other causes.
- Client agrees to promptly provide Televon with the Information required by Televon during the Term of this Agreement, and during Acceptance Periods and Optimization Periods.
- Client agrees to perform its obligations under this Agreement in a timely manner.
D. SAVINGS CALCULATIONS
- Savings calculations begin after the Initial Term’s “Implementation Time” (defined in the Terchnology Services Agreement). During this Implementation Time, if Client realizes savings from implemented Optimization Changes, there will be no Success Fees (see Section IV of Technology Service Agreement) charged until the Implementation Time is complete.
- Savings are determined based on the reduction in the cost of technology services realized by Client during the Optimization Period as a result of Recommendations for Optimization Changes that are accepted by Client as evidenced by their implementation.
- For each Optimization Change that is implemented, the savings will be measured by comparing the cost of the affected services after implementation on a month-to-month basis during the Optimization Period. Savings for Data Services will be based on dollar / speed of previous service as compared to new service ($100/month for 250mb = $0.40 / mb).
- If the Information required to be provided by the Client under this Agreement is not timely furnished, Televon will A) assume the Recommendation has been implemented (since it is not possible to verify implementation) and B) estimate the savings to the Client based on the higher savings amount of either the original estimated savings communicated with Recommendation or the average of savings Client would realize if the Recommendation had been implemented on the most recent three (3) Supplier bills available to Televon.
- Savings are not calculated, even when Client realizes a reduction in operating expenses due to Televon’s services, when Televon is acting as a Value Added Reseller (VAR). When Televon offers to act as the VAR, Televon will clearly indicate that A) Televon will become the contracting entity and B) savings realized will not be included in the Savings Calculation.
The occurrence of any of the following events shall constitute a Default of the terms of this Agreement:
- Either Party does not meet its obligations or violates any provision under this Agreement;
- Any payment due from Client is past due by more than fifteen (15) days;
- Client purports to rescind authorization for Televon to access Client’s technology accounts, disables or denies online access, or fails to provide copies of invoices or other Information required by Televon for the monthly monitoring of account activity in violation of the terms of this Agreement;
- Client becomes insolvent, a Receiver is appointed for the Client, or a voluntary or involuntary petition in bankruptcy is filed by or against the Client.
- Except as expressly provided in Section G hereunder with regard to notice of default, written notice may be sent by any commercially reasonable method, including by email, hand delivery, facsimile, and U.S. mail. Notices sent by hand delivery through a national courier service will be deemed delivered when delivery has been signed for as evidenced by the courier’s records. Notices sent by certified mail, return receipt requested, will be deemed delivered, whether or not actually received, when deposited in the U.S. mail, if properly addressed to the receiving party, with copy of the notice sent concurrently by email. Notice given in any other manner will be deemed delivered when and if actually received.
- Either party may change its address for notice by giving the other party notice of the change in the manner provided for notice in this Section. The requirement for the use of the new address will go into effect 14 days after the notice is delivered or deemed delivered.
G. ADDITIONAL PROVISIONS REGARDING DEFAULT
- Notice of Default. Written notice of Default shall be provided via U.S. Postal Service Certified Mail, Return Receipt Requested, to the address for notice described above. Notice of default shall be deemed delivered three (3) days after deposit in the U.S. mail, whether or not actually received.
- Cure of Default. Either party shall have 15 days after delivery or deemed delivery of written notice of Default to cure said default.
- Remedies for Default.
- Televon Default. If Televon is in material default under this Agreement, and does not cure the default within the cure period, Client will have the right to terminate this Agreement as its sole and exclusive remedy.
- Client Default. If Client is in default under this Agreement and does not cure the default within the cure period, Televon will have (i) all rights and remedies provided by this Agreement and at law or equity, (ii) the right to terminate this Agreement, and (iii) the right to accelerate payments as provided below. All such rights are cumulative and not exclusive.
- Acceleration. If Client fails to cure a default under this Agreement within the cure period, Televon may terminate this Agreement and notify Client that the remaining fees payable under this Agreement will be estimated for the remainder of the 24 month billing period during which fees will be assessed (as described in Section IV of the Technology Services Agreement) using the most recent Supplier invoice data available, and the total amount of the remaining fees shall be immediately due and payable in full. The payments to be accelerated will include any fees based on estimated savings as described in Section IV.
- Cost of Collection. Upon the occurrence of any Default, Televon shall be entitled to recover from Client reasonable expenses which may be incurred by Televon in the enforcement or attempted enforcement of its rights hereunder, whether against any third party, Client, or any Other Obligor. Expenses recoverable from Client shall (to the extent not prohibited by law) include costs of collection, including the hiring of agents, consultants, or otherwise.
- Mediation. The parties agree to mediate any dispute arising in connection with this Agreement in good faith, prior to filing suit.
- Attorney’s Fees. If suit is filed to enforce rights under this Agreement, the party prevailing in the litigation will be entitled to its reasonable attorney’s fees and court costs.
- Client grants Televon limited rights to market this relationship, including;
- Place Client’s name on Televon’s non-advertising marketing assets (website, handout brochures, etc.);
- Construct a case study on Client’s results for use in sales communications to prospects;
- Tell potential clients in 1:1 communications (email, phone, and in-person) that Client is a user of Televon’s services.
- Televon agrees that, when naming the Client in marketing material that it will NOT:
- Imply, either directly or indirectly, that Client endorses Televon or its services;
- Utilize Client’s name in any mass advertisements (print media, social or search banner ads, etc.);
- Provide any non-public details about Client, its users, or the Supplier services it utilizes.
This Agreement shall be construed in accordance with and governed by the laws of the State of Texas.
The parties agree that venue for any dispute arising under this Agreement shall be in courts of competent jurisdiction in Dallas County, Texas.
K. CONFIDENTIALITY OF INFORMATION AND SECURITY
- Client will notify Televon of any information that Client considers confidential. Televon shall keep such information confidential to the extent required by law and will comply fully with the laws and regulations of the State of Texas, or any applicable federal law.
- Televon will notify Client of any information that Televon deems confidential or proprietary, and Client will keep such information confidential and will not provide the information to others without Televon’s written consent, unless Client is required to disclose such information by court order or by a decision by the Texas Attorney General after request for a decision is made by the Client.
This Agreement is only assignable by Televon to an entity that acquires all, or majority, of Televon’s assets and/or equity.
M. INTEGRATIONS, MODIFICATIONS, AND AMENDMENTS
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements between the parties concerning the subject matter. This Agreement may not be amended, nor shall any waiver, modification, consent or discharge be effective, except by a written instrument executed by the parties hereto or under specifically designated rights listed herein.
In the event any provision of this Agreement is deemed to be void, invalid, or unenforceable, then to the extent that doing so does not negate the benefit of the bargain between the parties, that provision shall be severed from the remainder of this Agreement so as not to cause the invalidity or unenforceability of the remainder of this Agreement, and the Agreement shall be interpreted or reformed to accomplish as closely as possible the original intent of the parties, but in a manner that is not void, invalid or unenforceable. If any provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope and breadth permitted by law.