1. Terms and Conditions
1.1. If a Mutual Non-Disclosure Agreement has been signed, the terms and conditions of that certain Mutual Non-Disclosure Agreement dated TBD (NDA) between Client and Provider shall be incorporated herein in its entirety. For the avoidance of doubt, the terms and conditions of the NDA shall survive the termination of this Agreement and will expire as set forth in the NDA.
1.2. Disclaimer of Warranties.
PROVIDER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR PRODUCTS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION, OR DESCRIPTION, OR NON-INFRINGEMENT.
1.3. Non-Solicitation of Employees or Contractors.
During the term of this Agreement and for one year thereafter, either Client or Provider, or anyone acting on its behalf, shall not recruit or solicit employees, resellers, sub-resellers, agents, or independent contractors of Provider or Client, respectively. Client and Provider further agree not to provide gifts or payments of any type to any employee of Company without authorization of the then President of Company or the General Manager of Client, respectively.
1.4. Remedy.
Neither party shall be liable for any damages caused by the delay in furnishing services or other performance under the Agreement. The sole and exclusive remedy for any breach of warranty, express, or implied, including services furnished under this agreement and all other performance by either party under or pursuant to this contract shall be limited to replacement of defective service provided by either party or termination of this Agreement and shall in no event include any incidental or consequential damages.
1.5. Limitation of Liability.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY OR RESPONSIBILITY UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, DAMAGES ARISING FROM BUSINESS INTERRUPTION OR LOSS OF PROFITS OR DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS SET FORTH IN SECTION 5.12.8 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDERS ‘ LIABILITY FOR DAMAGES SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT FOR SERVICES UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM(S). Any obligation or liability whatsoever of Client, which may arise at any time under this Agreement shall be satisfied, if at all, out of Client’s respective assets only. No such obligation or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, the property of any of Client’s respective shareholders, directors, officers, employees or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise.
1.6. Assignment:
Provider may not assign its rights and obligations without the Client’s prior written approval. Client shall not assign its rights or delegate its obligations hereunder without the prior written consent of Provider
1.6.1. Subcontractors.
Provider shall not further sub-contract or use any other agent or third party in connection with the provision of Services under this Agreement without the prior written consent of Client. Notwithstanding the foregoing, Provider has advised Client that one
(1) subcontracting agreement with NOCDOC exists in connection with the Services. Client approves the foregoing, provided that Provider (a) remains primarily liable to Client for all such Services delegated under such subcontracting agreement, (b) promptly, upon written request by Client, provides any and all internal control reporting, audit, and IT security control documents delivered or generated by either Provider or subcontractor in connection with such subcontracting arrangement, and (c) promptly, upon written request by Client, comply with all written requests and legal requirements of Client’s supervisory or regulatory authorities exercising governmental oversight of Client’s business.
1.7. Relationship of the Parties.
This Agreement does not make either party the agent of the other, nor does it create a Providership, joint venture or similar relationship between the parties. Except as otherwise may be expressly stated herein, neither party has the power to obligate the other in any manner whatsoever. Each party acknowledges and agrees that its relationship with the other party is that of an independent contractor, and neither party will act or attempt to act in a manner that expresses or implies a relationship other than that between independent contractors. Provider provides the Services as an independent contractor and will be responsible for any and all social security, unemployment, workers’ compensation and other withholding taxes for all of Provider’s employees and agents (if any).
1.8. Waiver.
Any waiver by either party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. Any waiver must be in writing. Failure by either party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive such party of the right to insist upon strict adherence to that term or any other term of this Agreement.
1.9. Severability.
If any provision of this Agreement is held unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.
1.10. Force Majeure.
If either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (a “Force Majeure Event”), the party who has been so affected will immediately give notice to the other party and will do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure Event.
1.11. Miscellaneous
1.11.1. Insurance. At all times when Provider performs Services, Provider will have the following insurance coverage: § -Commercial General Liability covering bodily injury and property damage liability with a limit of not less than $1,000,000 each occurrence;
§ -Worker’s Compensation (or maintenance of a legally permitted and governmentally approved program of self-insurance) covering Provider’s employees under applicable state workers’ compensation laws for work-related injuries suffered by Provider’s employees;
§ -Automobile liability with limits of not less than $1,000,000 each accident;
§ -Comprehensive Crime with limits of not less than $1,000,000 each occurrence; and
§ -Errors and omissions liability covering damages arising out of negligent acts, errors, or omissions committed by Provider or their employees in the performance of this Agreement, with a limit of liability of not less than $2,000,000 each claim
1.11.2. Notices.
All notices given in connection with this Agreement shall be in writing and transmitted by (i) overnight express courier delivery with proof of reception; (ii) U.S. certified mail, return receipt requested, postage prepaid; or (iii) facsimile to the number listed below, with proof of transmission. Delivery of notices will be deemed given upon the date of receipt from a courier; the date certified mail return receipt is signed, or delivery is rejected; or date of confirmation of facsimile transmittal to authorized provider on the signature page.
1.11.3. Governing Law, Jurisdiction, and Venue.
This Agreement will be construed in accordance with and governed by the laws of the State of New York and the United States of America.
1.11.4. The Parties consent to jurisdiction and venue of the state or federal courts located in the city, state and county of New York. EACH PARTY HERETO WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN ANY LEGAL PROCEEDING RELATED TO, OR ARISING OUT OF, THIS AGREEMENT
1.11.5. Client Data Backup.
Client is solely responsible for executing proper data backup and recovery procedures before or after any Services are rendered under any SOW.
1.11.6. Intellectual Property Rights.
All intellectual property rights and other proprietary rights in and to the Services and deliverables, information, know-how, and processes related to the Agreement, or developed outside the SOW(s) for Client’s projects, will be Provider’s sole and exclusive property and will not be claimed to be a work made for hire. Client acknowledges and agrees: (i) that Provider has the right to re-use any of their know-how, ideas, concepts, methods, processes, or similar information, however, characterized, whether in tangible or intangible form, and whether used by Provider in the performance of Services or not, at any time and without limitation, (ii) that Provider retains ownership of any and all of Provider’s intellectual property rights including, but not limited to, all methods, concepts, designs, reports, programs, and templates and (iii) that any third-party which has provided software products to Client retains all right, title, and interest in its software products. Provider grants Client a non-exclusive right to use and display any deliverables as necessary in the conduct of business. This license is perpetual, provided that Client is not otherwise in default under this Agreement. Provider agrees that upon conclusion of this Agreement (whether upon expiry of the term or by termination in accordance with its terms) to provide Client with all KBA, ticket catalogs, and asset inventories and procedure (run books) for its own use.
1.11.7. Indemnification.
Each Party indemnifies and holds the other harmless from any third-party claim, suit, action, liability, and cost of any kind, including reasonable attorneys' fees and costs of litigation, for death or bodily injury caused by its willful misconduct or negligence. To receive the benefit of indemnification under this Section, the indemnified Party must promptly notify the Indemnitor in writing of a claim or suit and provide reasonable cooperation (at Indemnitor's expense) and tender to Indemnitor (and its insurer) full authority to defend or settle the claim or suit. Indemnitor has no obligation to indemnify for any settlement made without its consent or for any claim to the extent lack of prompt notice shall have prejudiced Indemnitor. The remedies provided in this Section are the sole and exclusive remedies available for any claim covered under this Agreement.
1.11.8. Limitation of Actions.
Unless otherwise provided by law, without the possibility of contractual waiver or limitation, any legal or other action related to this Agreement must be commenced no later than one (1) year from the occurrence giving rise to the claim or be barred forever.
1.12. Auditing; Supervisory Requests.
Client has the right to audit Provider, whether through onsite or off-site audits. Onsite audits will be conducted with reasonable prior written notice to the Provider and during business hours and shall occur not more than once in a 12 month period, provided there is no default under this Agreement. Provider shall further make available any of its own internal auditing and control documentation or reports upon written request of Client. Provider acknowledges that if Client is subject to government supervision in the United States and in the European Union, Provider agrees to comply with all requests for information received by Client from its supervisory authorities in connection with the Services and this Agreement.
1.13. Entire Agreement.
This Agreement (including any and all exhibits or attachments hereto) constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent proposals and understandings, whether oral or written and all other communications between the parties relating to the subject matter of this Agreement.
1.14. Amendments.
No amendments, modifications, or supplements to this Agreement will be binding unless they are in writing and signed by both parties hereto.
1.15. Counterparts; Facsimile.
This Agreement may be executed in one or more counterparts, each of which when so executed will be an original, but all of which together will constitute one agreement. This Agreement may be executed by facsimile signature.
1.16. Notice of Certain Events.
Provider shall provide Client notice of the following events:
(a) Immediately and in any event not less than 72 hours after the occurrence of any act or attempt, successful or unsuccessful, to gain unauthorized access to, disrupt or misuse any of the Client’s or Provider’s Information System(s) or information stored on such Information System(s). “Information System” means a discrete set of electronic information resources organized for the collection, processing, maintenance, use, sharing, dissemination or disposition of electronic information, as well as any specialized system such as industrial/process controls systems, telephone switching and private branch exchange systems, and environmental control systems.
(b) Promptly, upon the occurrence of any change in organizational structure, operational structure, or IT infrastructure that could reasonably be expected to have a material adverse impact on the quality of the Services.
(c) Promptly, upon the occurrence or change in any fact or circumstance which may have a material adverse effect on the Provider, and which may materially reduce, impair or prohibit the provision of the Services.
1.17. Internal Control Systems; IT Security.
Provider shall maintain internal security controls, authorization management, and IT security protocols, and in connection with Section 5.13 shall provide evidence acceptable to Client of the operation of such controls. Provider shall address any deficiencies in its internal controls, authorization management, and IT security notified to it in writing by Client by providing updated policies and procedures within thirty (30) days of such notice.
1.18. Compliance with law.
Provider shall comply with all applicable laws and regulations in all material respects.
2. Service Billing
2.1. Term. Unless terminated or canceled as provided herein, this Agreement shall continue for 12 months following the service operations date, which shall be agreed between Client and the Service Provider immediately following the initial onboarding of the Service Provider and Services.
2.2. Termination and Cancellation.
This Agreement and any work assignment in progress may be terminated by Client at any time and without cause, upon thirty (30) days prior written notice to Partner; provided, however, in the event of any such termination, Client shall pay early termination fees which will be the equivalent of (2) months of the monthly recurring fees. All of these sums shall become immediately due and payable on the effective date of the termination, i.e. thirty days (30) from the date of written notice of the same.
2.3. Other Bases for Termination
2.3.1. Material Breach. Either party may terminate this Agreement upon written notice to the other party if the other party breaches any term or condition of this Agreement, and such breach is not cured to the non-breaching party's satisfaction within five (5) days of written notice specifying the breach, provided that if such cure is not commercially practical within five (5) days, such period permitted to cure shall be extended to no longer than thirty (30) days from the original written notice of default. Client may terminate immediately upon notice to Provider if
(a) Provider fails to respond to an Incident or Problem within 4 hours or fails to resolve a critical level Incident or Problem within 12 hours more than once in any four-month period;
(b) Provider defaults under its obligations under section 5.19; and
(c) Any governmental supervisory or regulatory body exercising authority over Client requests this Agreement be terminated;
2.3.2. Insolvency.
This Agreement will terminate automatically in the event that: (a) a receiver is appointed for Provider or Client or its property; (b) Provider or Client makes an assignment for the benefit of its creditors; (c) any proceedings are commenced by, for or against Provider or Client under any bankruptcy, insolvency, or debtor's relief law for the purpose of seeking a reorganization of Client's debts, and such proceeding is not dismissed within sixty (60) calendar days of its commencement; or (d) Client is liquidated or dissolved.
2.4. Payment of Charges.
Monthly payments will be invoiced in advance on the first of each month with payment due within ten (10) days of the invoice date. All setup fees will be due upon the start date of the agreement, the first monthly billing will be invoiced on the first day of the first Managed Services month with payment due within ten (10) days of the invoice date. Refer to Schedule A for pricing and services covered by the monthly fee under the terms of this Agreement.
2.5. Monthly Fee.
The monthly fee pursuant to this Agreement is premised upon many contributing factors including but not limited to total employees supported total devices supported, and total hours of support. As these variables increase or decrease in size there will be a commensurate increase or decrease in time, materials, and labor and therefore an increase or decrease in the fee will become necessary. The Agreement will be reviewed quarterly in order to determine the need to increase or decrease the amount due based upon numbers as referenced herein. Such an increase or decrease will be implemented by Client signing an amendment to this Agreement. Should Client not agree to the increase of the fee upon review, this Agreement shall terminate without any penalty and any time and material owned to Provider to the date of termination shall be due and payable within ten (10) days of termination.
2.6. Payment Default.
If the Client defaults or is untimely in making payments, an additional one and one-half percent (1.5%) late fee will be added each month to all services and goods that are outstanding. If full payment has not been received after thirty (30) days, an additional one and one-half percent (1.5%) per month late fee will be added to all services and goods that are still outstanding.
2.7. Equipment Warranty.
Provider does not offer any warranty service on products sold or resold. Any and all product issues requiring warranty service or resolution will be referred to the individual product manufacturers. Whether the equipment problem or product issue is referred to Provider by the Client or discovered as part of unrelated services Provider may be providing, Provider will charge for any and all onsite labor involved.
2.8. Taxes.
Unless Client is exempt and a valid exemption certificate is submitted to Provider, Client is responsible for all applicable sales, excise, use, and/or other taxes resulting from any transaction under this Agreement (except for any taxes on income of Provider). Invoices will separately state the total amount of applicable taxes. In the event that additional sales taxes are assessed by state tax authorities, Client agrees to reimburse Provider for any such additional taxes as remitted by Provider in writing to Client, provided that such request for reimbursement is given no longer than 180 days following such assessment by the applicable taxing authority.
2.9. Statement of Work
2.9.1. Process for the SOW. Provider will provide Services and sell products ("Products") to Client as provided in the SOW. Services will be described in the Scope of Services section of this Agreement. Once agreed, each SOW must be signed by each Party’s authorized representatives. Each SOW constitutes a separate and individual agreement entered into by the Parties under the Terms and Conditions of this Agreement. Except if any future SOW specifically identifies this Agreement by name and date and states that the Terms and Conditions is inapplicable, or that a specific provision of the Terms and Conditions is amended or superseded by a specific provision of the SOW, these Terms and Conditions shall govern the provision of all Services and the sale of all Products by the Provider. Subject to the prior sentence, in the event of any conflict between the terms of this Agreement and the terms and conditions of any SOW, the Terms and Conditions of this Agreement will supersede with regard to legal matters, and the SOW will supersede with regard to business matters.
2.9.2. Changes to the SOW.
If a Party wishes to change a SOW, and both Parties agree, the change will be documented in writing by a change order signed by both Parties’ authorized representatives. The change order must describe the change, the impact that the change may have on the SOW, the estimated resources and time required to implement the change, and any change in prices, if applicable.