Unless the parties have entered into a separate written agreement signed by both NetGuard Technologies LLC (“NetGuard”) and the customer (“Customer”) that governs the services provided, these Terms and Conditions (“Agreement”) apply to all services, products, materials, and equipment provided by NetGuard (collectively, the “Services”).
This Agreement applies to any purchase order, project packet, quotation, estimate, invoice, order acknowledgment, confirmation, or other document issued between NetGuard and Customer (collectively, an “Order”).
Customer desires to obtain the Services from NetGuard Technologies LLC (“NetGuard”) as outlined in one or more Orders.
Unless stated otherwise in a signed writing, the Services will be provided during NetGuard’s normal business hours, typically 8:00 a.m. to 5:00 p.m. EST/EDT, Monday through Friday, excluding holidays recognized by NetGuard.
The Services will be performed at the location agreed upon by the Parties in the applicable Order. Unless otherwise specified in writing, NetGuard may provide Services remotely. Customer shall provide NetGuard reasonable access to Customer’s premises, equipment, software, systems, and personnel as necessary to perform the Services.
Customer shall provide all required materials, approvals, authorizations, and information necessary for NetGuard to perform the Services and shall promptly respond to NetGuard’s requests. Any delays caused by Customer, including failure to provide required access, information, approvals, or payment for materials, shall extend NetGuard’s performance deadlines accordingly.
Where an Order requires the procurement of materials, equipment, software, licenses, or third-party products, Customer shall pay the full cost of such items in advance of procurement. NetGuard shall have no obligation to order, schedule, or install such items until payment is received. Delays in payment for materials shall constitute Customer-caused delay.
NetGuard reserves the right to suspend Services if:
(i) Customer or its users are in breach of this Agreement, and such breach is not timely cured;
(ii) suspension is required by subpoena, court order, or other legal process; or
(iii) suspension is necessary to contain a suspected security incident.
NetGuard shall notify Customer of any such suspension. Customer shall remain responsible for all material costs incurred and all Services performed before or during any suspension.
NetGuard Technologies LLC (“NetGuard”) may act as a reseller, distributor, licensor, or sub-licensor of hardware, software, equipment, licenses, subscriptions, or other products manufactured or provided by third parties pursuant to an Order (“Third Party Products”).
All Third Party Products are subject to the terms of the applicable Order and the terms, conditions, license agreements, warranties, and other requirements imposed by the applicable manufacturer or vendor.
Payment Terms for Third-Party Products:
Customer shall pay the full cost of all Third Party Products in advance of procurement. NetGuard shall have no obligation to order, schedule, deliver, or install any Third Party Product until payment has been received. Unless otherwise stated in writing, Third Party Products may be non-refundable and subject solely to the return, warranty, and replacement policies of the applicable vendor.
Any malfunction, manufacturer defect, delay, discontinuation, or failure of Third Party Products shall not be deemed a breach of NetGuard’s obligations under this Agreement. Customer’s rights and remedies with respect to any Third Party Product are limited to those provided by the manufacturer or third-party provider.
Customer is entitled to use Third Party Products supplied by NetGuard only in connection with the Services and in accordance with the applicable vendor terms. Customer shall not resell, transfer, assign, sublicense, or export any Third Party Product, or any related technical data, in violation of this Agreement, the vendor’s terms, or any applicable United States or foreign law.
NetGuard assumes no responsibility for the content, performance, availability, terms and conditions, privacy policies, or practices of any Third Party Product. Customer expressly releases NetGuard from any and all liability arising from Customer’s access to or use of Third Party Products, except to the extent caused by NetGuard’s willful misconduct.
Customer is solely responsible for obtaining and maintaining valid licenses for all software, applications, subscriptions, and hardware used within its organization.
NetGuard Technologies LLC (“NetGuard”) is not responsible for monitoring Customer’s compliance with vendor licensing requirements and shall not be liable for any fines, penalties, damages, or fees resulting from Customer’s failure to maintain proper licensing.
Customer shall ensure all required licenses are in place prior to the performance of Services. Any delays caused by licensing deficiencies, expired licenses, or procurement delays shall be deemed Customer-caused delays and may affect project timelines.
NetGuard reserves the right to refuse or suspend Services on any systems, including servers, workstations, or network equipment, that are found to be operating with illegal, unlicensed, unsupported, or improperly activated software.
NetGuard shall not be responsible for issues arising from unsupported software, including security vulnerabilities, instability, or compatibility limitations.
Unless otherwise specified in an Order, Customer shall pay NetGuard Technologies LLC (“NetGuard”) for Services at NetGuard’s then-current rates.
Materials and Third-Party Products
Customer shall pay the full cost of all materials, equipment, hardware, software, licenses, subscriptions, and other third-party products required for an Order prior to procurement. NetGuard shall have no obligation to purchase, schedule, deliver, or install such items until payment has been received.
Labor and Services
Unless otherwise specified in an Order, labor and service charges will be invoiced upon project completion. For larger projects, NetGuard may invoice progress payments tied to project milestones.
Work performed outside normal business hours or on recognized holidays will be billed at NetGuard’s then-current after-hours rates.
Invoices & Payment Terms
If Customer has authorized ACH/EFT payments, Customer’s account will be debited on the scheduled processing date. If no date is specified, payment will be processed thirty (30) days after invoice delivery.
Otherwise, invoices are due upon receipt unless different terms are stated in the Order. Any undisputed amounts not paid when due shall accrue interest at a rate of three percent (3%) per month, compounded, or the maximum allowed by law.
If Customer reasonably disputes an invoice, Customer must notify NetGuard in writing within thirty (30) days of receipt. Failure to timely dispute an invoice constitutes a waiver of any fee disputes.
Taxes
Customer is responsible for all applicable federal, state, and local taxes, duties, or similar charges related to the Services, excluding taxes based on NetGuard’s net income.
Nonpayment & Suspension of Services
Payment obligations for materials procured and Services performed are non-cancelable. NetGuard reserves the right to suspend Services for nonpayment.
Unless otherwise agreed in writing, NetGuard may repossess hardware, materials, equipment, or other items delivered or installed if Customer fails to pay outstanding invoices within ninety (90) days.
The commencement and completion dates for this Agreement (the “Term”) shall be as set forth in the applicable Order. If no Term is specified, this Agreement shall remain effective for an initial term of twelve (12) months from the effective date of the relevant Order and shall automatically renew for successive terms of equal duration unless either Party provides at least sixty (60) days’ prior written notice before the end of the then-current Term.
NetGuard Technologies LLC (“NetGuard”) may suspend or terminate an Order or Services if Customer:
(i) fails to make any required payment, including payment for materials or third-party products required prior to procurement, and such failure continues for fifteen (15) days after written notice; or
(ii) breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after written notice.
Upon termination, NetGuard shall cease performing Services. Customer shall remain responsible for payment of:
Unless otherwise agreed in writing, payments for materials and third-party products are non-refundable once procured.
If termination occurs due to Customer’s nonpayment or breach, NetGuard reserves the right to recover or disable any hardware, software, licenses, or equipment provided until outstanding balances are satisfied.
In the event of termination or expiration for any reason, all provisions that by their nature should survive shall remain in effect, including but not limited to Confidentiality, Licensing Compliance, Limitation of Liability, Payment Obligations, and Indemnification.
Termination shall be without prejudice to any rights or remedies available to either Party.
At Customer’s request and at NetGuard’s sole discretion, NetGuard may provide transition assistance to facilitate migration to another service provider. Such services will be billed on a time-and-materials basis at NetGuard’s then-current rates.
Nothing in this Agreement or any Order shall be construed to transfer, convey, restrict, impair, or deprive NetGuard Technologies LLC (“NetGuard”) of any ownership or proprietary rights in any technology, information, or products that:
(a) existed prior to the provision of deliverables or Services;
(b) were independently developed outside the scope of this Agreement without use of Customer’s Confidential Information;
(c) include NetGuard’s tools, equipment, hardware, software, processes, methodologies, and technologies;
(d) consist of work product, code, or materials of general utility or reusable application; or
(e) constitute NetGuard’s technical knowledge, experience, and know-how
(collectively, the “NetGuard Toolset”).
To the extent any portion of the NetGuard Toolset is required for Customer to use the deliverables or receive the benefit of the Services, NetGuard grants Customer a nonexclusive, worldwide, royalty-free license to use such Toolset solely for Customer’s internal business purposes and only in connection with the Services and deliverables provided under the applicable Order. This license shall remain in effect for the duration of the applicable Order and shall terminate upon termination of Services for nonpayment or material breach.
NetGuard acknowledges that it acquires no ownership rights in Customer data. NetGuard shall use Customer data solely as necessary to perform the Services, comply with applicable law, and fulfill obligations under this Agreement.
To the extent the Services involve the submission, collection, or processing of information relating to an identified or identifiable natural person (“Personal Data”), Customer shall notify NetGuard. Customer shall be the data controller, and NetGuard shall act as a service provider or data processor with respect to such Personal Data.
NetGuard agrees to process Personal Data in accordance with applicable data protection laws and Customer’s lawful instructions as provided in this Agreement, in any Order, or as otherwise communicated in writing.
Customer is responsible for providing required notices and obtaining any necessary consents for NetGuard to access and process Personal Data in connection with the Services.
Where required by applicable law, the Parties agree to execute a Data Processing Addendum (“DPA”), which shall supplement and form part of this Agreement.
NetGuard Technologies LLC (“NetGuard”) warrants that it will perform Services under this Agreement in a timely, professional, and workmanlike manner consistent with generally recognized industry standards for similar services.
Customer must promptly notify NetGuard in writing of any alleged warranty breach. NetGuard shall have thirty (30) days from receipt of such notice to cure the breach, or such longer period as reasonably necessary if NetGuard is actively working to resolve the issue.
If NetGuard fails to cure a material breach within the applicable cure period, Customer’s sole and exclusive remedy shall be termination of the affected Services.
This warranty applies solely to Services performed by NetGuard and does not apply to any third-party hardware, software, equipment, licenses, or other Third Party Products, which are subject solely to the warranties (if any) provided by their respective manufacturers or vendors.
Warranty remedies are conditioned upon Customer being current on all payment obligations under this Agreement.
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH ABOVE, NETGUARD MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
NETGUARD DOES NOT WARRANT THAT:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NETGUARD DISCLAIMS RESPONSIBILITY FOR ANY SECURITY, AVAILABILITY, OR PERFORMANCE ISSUES CAUSED BY:
The Parties acknowledge that each Party possesses valuable trade secrets, proprietary information, and confidential data, including information licensed or received from third parties (“Confidential Information”).
Each Party shall:
Definition of Confidential Information:
Confidential Information includes, but is not limited to, information that:
(a) is confidential or proprietary to the disclosing Party or its customers;
(b) relates to trade secrets, methods, intellectual property, research, products, operations, policies, procedures, techniques, accounts, or personnel of the disclosing Party; or
(c) is confidential or proprietary to a third party and in the possession, custody, or control of the disclosing Party.
Each Party shall maintain physical, administrative, and technical security measures to prevent loss, destruction, or unauthorized access to Confidential Information in accordance with or exceeding all applicable laws, regulations, and industry standards. Each Party shall maintain commercially reasonable insurance sufficient to cover the costs of remediating any cyber breach incident.
Permitted Disclosures:
A Party may disclose Confidential Information to the extent required by law, government proceedings, or regulations of any regulatory authority with jurisdiction, provided that the disclosing Party gives prompt notice to the other Party to allow for protective measures where legally permitted.
Survival:
All confidentiality obligations shall survive the expiration or termination of this Agreement for a period of five (5) years, or longer if required by applicable law.
Neither Party shall be deemed in default of any obligation under this Agreement, except for payment obligations, for any delay or failure in performance caused by events beyond its reasonable control that could not have been foreseen or overcome through the exercise of reasonable care.
Such events may include, but are not limited to, epidemics, pandemics, government orders, natural disasters, power or communication failures, or other catastrophic events.
In the event of a Force Majeure, performance of the affected obligations shall be suspended for the duration of the event plus a reasonable period necessary to resume performance. Once the event has ended, the Parties shall resume performance as soon as reasonably possible.
Payment obligations, including upfront payment for materials or third-party products, shall remain due and enforceable notwithstanding any Force Majeure event.
Except as expressly provided in this Agreement, neither Party shall be liable to the other for any indirect, incidental, consequential, punitive, or special damages, including, without limitation, lost revenues, lost profits, cost of capital, or loss of business opportunity.
**NetGuard Technologies LLC (“NetGuard”)’s liability for any claim arising under or related to this Agreement shall not exceed the total amount paid by Customer to NetGuard for Services performed in the six (6) months preceding the event giving rise to the claim, excluding amounts paid for materials, third-party products, or licenses, which are non-refundable and outside the scope of this liability limitation.
NetGuard’s liability for liquidated damages is limited to a maximum of $2,500 per incident, unless otherwise expressly agreed in writing.
This limitation applies regardless of the form of action or legal theory, including breach of contract, warranty, tort (including negligence), or strict liability.
Nothing in this Agreement shall limit liability for:
NetGuard Technologies LLC (“NetGuard”) is an independent contractor. Customer shall have no right to control, supervise, or direct the acts or omissions of NetGuard personnel.
NetGuard shall retain full responsibility for the supervision, direction, control, and payment of its personnel. NetGuard is solely responsible for all wages, benefits, taxes, and other obligations relating to its personnel, and under no circumstances shall any NetGuard personnel be entitled to direct payment from Customer or be considered an employee of Customer.
Customer agrees to provide the following in support of this Agreement:
Payment Obligations
Access and Cooperation
NetGuard Technologies LLC (“NetGuard”) agrees to perform the following in support of this Agreement:
Service Performance
Dependencies on Customer Obligations
Professional Standards
The following assumptions apply to all in-scope Services and components under this Agreement:
Scope and Changes
Dependencies
Documentation
Effective support of in-scope Services requires maintaining consistent service levels. The following principles apply:
Service Availability and Monitoring
Dependencies on Customer Obligations
Reporting and Communication
Impact of Delays or Changes
Coverage parameters for Services under this Agreement are as follows:
Telephone Support
Email Support
Onsite or Remote Assistance
NetGuard Technologies LLC (“NetGuard”) will respond to service-related incidents and requests submitted by Customer according to the following priority levels and timelines:
Response times assume that Customer has fulfilled its obligations under this Agreement, including:
Support will be provided in accordance with the above timescales, with priority determined by the impact on Customer’s business operations.
Customer shall pay a one-time onboarding fee of $100 per device for the services and software outlined in this Agreement.
Payment of the onboarding fee is due prior to commencement of onboarding services, and NetGuard Technologies LLC (“NetGuard”) shall not begin onboarding until payment is received.
If Customer elects to terminate this Agreement prior to completion of the Services, Customer shall be responsible for:
Early Termination Fee
Offboarding Fee
All fees associated with early termination and offboarding shall be payable immediately upon termination.
1. TERM
Term and Renewal
1.1 This Agreement remains valid for the term specified in the applicable Order and shall automatically renew in 1-year increments for up to five (5) years from the date of signature, unless either Customer or NetGuard Technologies LLC (“NetGuard”) provides written notice of changes, cancellation, or replacement agreement at least 30 days prior to the end of the then-current term.
1.2 NetGuard may withdraw individual items from this Agreement if equipment cannot be properly or economically repaired on-site due to Customer-caused excessive wear or deterioration.
1.3 All Agreements commence on the first day of the month and end on the last day of the month for the term specified. Any days prior to the commencement date will be billed on a prorated basis.
Payment and Suspension
2.1 Maintenance services, including labor and any recurring materials required, shall be invoiced in advance for the full service period. Payment is due prior to the start of the service period.
2.2 If the invoice is not paid within 30 days, maintenance services may be suspended. NetGuard will contact the Customer to resolve the outstanding balance.
2.3 If payment is not received or resolved within 60 days from the invoice date, the Agreement will be canceled. Restarting a canceled Agreement requires:
Service Scope and Materials
Only equipment explicitly listed in the referenced estimate or Order, and for which payment obligations have been met, is eligible for coverage under this Service Agreement.
Equipment not included in the estimate or Order, or for which payment has not been received, is not covered by the Agreement and may incur additional charges for services.
3.1 Maintenance Services
NetGuard Technologies LLC (“NetGuard”) agrees to provide maintenance services during the period specified in this Agreement to maintain the equipment listed in the applicable Order in good operating condition. Services include:
All remedial service requests must be initiated by notifying a NetGuard service representative using the phone number or email address provided in the Welcome Letter issued at the commencement of this Agreement. Service response times are subject to the timelines specified in this Agreement and assume Customer has met all obligations, including upfront payment for any required materials, third-party products, or onboarding fees.
3.2 Parts Replacement
Maintenance includes replacement of parts deemed necessary by NetGuard. All replacement parts will be new, standard-quality parts provided on an exchange basis. Parts removed from the system during replacement become the property of NetGuard. Any parts not covered under the Agreement may incur additional charges.
3.3 Notes & Benefits
3.3.1 Unlimited onsite support for covered equipment.
3.3.2 Advanced replacement of all covered devices.
3.3.3 Unlimited remote support for covered devices.
3.3.4 24/7/365 monitoring of all covered devices for outages and failures.
3.3.5 10% discount on covered projects with a 36-month Agreement signed before project start, applicable only to non-financed projects.
3.3.6 Quarterly reporting on device health and maintenance status for all covered equipment.
4.1 Standard Service Availability
The basic maintenance agreement entitles Customer to onsite or remote maintenance service within 72 hours during normal business hours, 8:00 AM to 5:00 PM EST, Monday through Friday, excluding recognized public holidays. Service availability assumes Customer has met all payment obligations, including any upfront fees for materials, onboarding, or third-party products.
4.2 After-Hours Service
If Customer requests maintenance outside normal business hours, NetGuard Technologies LLC (“NetGuard”) will perform the service on a best-effort basis at the call rates and terms in effect at the time of service.
4.3 Taxes and Duties
In addition to charges under this Agreement, Customer shall pay any applicable customs, import duties, federal, state, municipal, VAT, excise, sales, use, occupational, or similar taxes that NetGuard is required to collect. Customer is not responsible for taxes based on NetGuard’s net income or for any franchise or other business taxes imposed on NetGuard.
4.4 Price Adjustments
All prices are subject to change on the anniversary date of this Agreement. NetGuard shall provide Customer with 30 days’ written notice prior to any price change.
5.1 Customer-Caused or Improper Use
Maintenance service is contingent upon proper use of all equipment. NetGuard Technologies LLC (“NetGuard”) is not obligated to provide preventative or remedial maintenance for equipment that:
Service calls related to damage caused by Non-NetGuard-furnished hardware, cabling, or accessories are billable at NetGuard’s current Time & Materials rates. NetGuard is also not responsible for repairs resulting from acts of God, including fire, flood, earthquakes, or similar events.
5.2 Non-Covered Items
Maintenance service does not include:
5.3 Third-Party Equipment
Maintenance service does not cover other vendors’ equipment or accessories, except as specifically listed in this Agreement. If a service call is made on NetGuard-furnished equipment and the malfunction is caused by third-party materials or accessories, the service call will be billed at NetGuard’s current per-call rates and terms.
Customer shall ensure that NetGuard Technologies LLC (“NetGuard”) has full and unrestricted access to all equipment during service calls.
Failure to provide timely access may result in delays to service and may affect service response times. Any additional visits required due to lack of access may be billed at NetGuard’s current Time & Materials rates.
7.1 Customer Notice and Relocation Services
Customer shall provide NetGuard Technologies LLC (“NetGuard”) with at least thirty (30) days prior written notice of any intent to move equipment covered under this Agreement.
If requested, NetGuard (or a third party acting on its behalf) may perform dismantling, packing, inspection, and reinstallation of the equipment. All labor for these services shall be billed to Customer at NetGuard’s then-current rates. Customer shall be responsible for all packaging and shipping costs.
NetGuard will certify the condition of the equipment prior to shipment and upon reinstallation at the new location. Maintenance charges shall be suspended during dismantling and shall resume on the day following equipment inspection and acceptance at the new location.
Equipment moved to a location within NetGuard’s service area remains eligible for coverage under this Agreement. Any applicable remote service surcharges or additional terms at the new location will apply.
7.2 Unauthorized Moves or Alterations
If any party other than NetGuard moves, alters, or tampers with equipment, NetGuard may, at its discretion, remove the affected equipment from this Agreement. NetGuard shall not be liable for any damages resulting from actions taken by other parties.
8.1 Limitation of Liability
Customer agrees that NetGuard Technologies LLC (“NetGuard”) shall not be liable for any special, indirect, or consequential damages, including lost profits, lost revenue, or loss of business opportunity. This clause is in addition to the Limitation of Liability provisions elsewhere in this Agreement.
8.2 Precedence
The terms and conditions of this Agreement shall prevail over any conflicting terms in any present or future Customer order for maintenance or services.
8.3 Supersession and Modification
This Agreement supersedes all prior maintenance agreements or understandings between the Parties. Any modification, amendment, or termination of this Agreement must be in writing and signed by authorized representatives of both Parties.
8.4 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflicts of law principles.
8.5 Equipment Environmental Requirements
Customer shall ensure that all equipment is maintained according to NetGuard’s published environmental specifications to maintain eligibility for coverage under this Agreement.
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