TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) govern all services, products, and technology solutions provided by Hempfield Technology Management LLC d/b/a Hempfield Technology (“Service Provider”). These Terms are incorporated by reference into any statement of work, proposal, service order, or similar document executed between Service Provider and a customer (each, a “SOW”). By executing a SOW, accepting Services, or paying an invoice referencing these Terms, the customer (“Customer”) agrees to be bound by these Terms. Hempfield Technology provides information technology services, including managed services, consulting, license reselling, software implementation, and helpdesk support, collectively as an evolving framework to manage the information technology infrastructure of the Customer.
Customer desires to retain Service Provider to provide certain of these information technology services upon the terms and conditions set forth in these Terms and as expressly set forth in a SOW (as defined below), and Service Provider is willing to perform such services.
In consideration of the mutual covenants and agreements set forth in these Terms, the parties agree as follows:
1. Definitions
Capitalized terms not otherwise defined in the context of these Terms are set forth and defined in the “Glossary of Terms” set forth on Schedule 1 attached to these Terms.
2. Services.
2.1 Service Provider will provide the services described in the applicable SOW. By accepting Services and/or an applicable SOW, Customer agrees to the terms of these Terms. If there is a conflict between the language in a SOW on the one hand and the language in these Terms on the other, then the language of the SOW will control.
2.2 Each SOW may include the following information, if applicable: (a) a description of the Services to be performed pursuant to the SOW; (b) the date upon which the Services will commence and the term of such SOW; (c) the fees and costs to be paid to Service Provider under the SOW; (d) the Project implementation plan and/or timetable; (e) Project Milestones and payment schedules; (f) any other criteria for completion of the Services and/or Project; and (g) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such SOW.
2.3 Services will be performed in accordance with Service Provider’s standard scheduling and prioritization practices. Estimated service start dates are subject to change depending on onboarding requirements, prerequisites, or operational factors. Service Provider will respond to any notification received by Service Provider of any error, outage, alarm, or alert pertaining to the Environment in accordance with the priority table(s) supplied to Customer in an SOW. In no event will Service Provider be responsible for delays in its response or Service Provider’s provision of Services during (a) those periods of time covered under the Transition Exception, (b) periods of delay caused by Scheduled Downtime, Customer-Side Downtime, Vendor-Side Downtime, (c) periods in which Service Provider is required to suspend the Services to protect the security or integrity of the Environment or Service Provider Equipment, or (d) delays caused by a Force Majeure Event. Service Provider will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Customer-Side Downtime or Vendor-Side Downtime.
2.4 Each party is, and will remain, the owner and/or licensor of all works of Intellectual Property Rights owned by such party and nothing in these Terms, any SOW, or the provision of any Service shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property Rights to the other party unless expressly set forth and described in a SOW. For the purposes of clarity, Customer understands and agrees that Service Provider owns any software, codes, algorithms, or other works of authorship that Service Provider creates while providing the Services to Customer. If Service Provider provides licenses to Customers for Third Party Products, then Customer understands and agrees that such Third Party Products are licensed, and not sold, to Customer. Customer is allowed to use such Third Party Products subject to the terms and conditions (a) of these Terms, (b) of the applicable SOW, (c) written directions that Service Provider supplies to Customer, and (d) any applicable EULA; no other uses of such Third Party Products are permitted. To the maximum extent permitted by applicable Law, Service Provider makes no warranty or representation, either expressed or implied with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.
2.5 Customer acknowledges that Service Provider’s pricing, scope assumptions, and service recommendations may initially be based on information provided by Customer during the sales or discovery process. Following onboarding and integration into Customer’s systems, Service Provider may conduct an operational and security assessment of the Environment. If Service Provider reasonably determines that the Environment materially differs from the representations made during the discovery process, or requires remediation, upgrades, or additional services to meet Minimum Requirements, operational or security standards, Service Provider may recommend changes to the scope of Services and associated fees through a Change Order or updated SOW.
2.6 Customer acknowledges and agrees that Service Provider may, in its sole discretion, use AI Tools in connection with the performance of the Services. Service Provider retains sole discretion over the selection, implementation, and discontinuation of any AI Tools. Customer’s continued acceptance of the Services constitutes consent to Service Provider’s use of AI Tools as described herein. To the extent that any Deliverables, reports, analyses, recommendations, code, configurations, or other work product are created, generated, or assisted by AI Tools in the course of providing the Services (“AI-Generated Work Product“), such AI-Generated Work Product shall be treated as Service Provider’s proprietary work product, and all right, title, and interest therein shall vest in Service Provider to the maximum extent permitted by applicable Law. Customer’s rights to use AI-Generated Work Product shall be limited to the scope of the applicable SOW and these Terms. Customer acknowledges that AI-Generated Work Product may not be eligible for intellectual property protection under applicable Law, and Service Provider makes no representation or warranty regarding the registrability or protectability of AI-Generated Work Product. Customer shall not: (a) use any AI-Generated Work Product or output from AI Tools to train, fine-tune, or develop competing AI models or services; (b) represent AI-Generated Work Product as having been created solely by a human author where applicable Law requires disclosure of AI involvement; (c) use AI Tools provided as part of the Services in a manner that violates applicable Law or the terms of any applicable EULA; or (d) reverse engineer, extract, or attempt to extract the underlying model, weights, training data, or algorithms of any AI Tool made available through the Services. Violation of this Section shall constitute a material breach of these Terms.
2.7 Unless expressly set forth in an applicable SOW, the Services do not include, and Service Provider shall have no obligation to perform, incident response, digital forensic investigation, forensic data collection or preservation, root cause analysis, malware reverse engineering, threat actor attribution, evidence handling, chain-of-custody management, regulatory breach notification, or any related remediation services arising from or in connection with a Security Incident or suspected Security Incident (collectively, “Incident Response Services“). In the event Customer requires Incident Response Services, such services shall be scoped, priced, and documented in a separate SOW or Change Order, subject to Service Provider’s then-current rates, resource availability, and acceptance. Customer acknowledges that Incident Response Services may require the engagement of specialized Third Party Providers, and the costs of such Third Party Providers shall be the sole responsibility of Customer unless otherwise agreed in writing.
3. Service Provider’s Obligations.
3.1 The Service Provider shall:
(a) designate a representative responsible for coordination of Services(the “Service Provider Contract Manager”), and (ii) Service Provider Personnel, who shall be suitably skilled, experienced, and qualified to perform the Services;
(b) before the date on which the Services are to start, obtain, and at all times during the Term of these Terms maintain, all necessary licenses and consents and materially comply with all relevant Laws applicable to the provision of the Services;
(c) comply with, and ensure that all Service Provider Personnel, materially comply with, all rules, regulations, and policies of Customer that are communicated to Service Provider in writing, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Customer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures. Customer authorizes Service Provider to remotely access Customer systems, networks, and devices as reasonably necessary to provide the Services; and
(d) in connection with Services with fees based on time and materials (versus flat rates), maintain reasonable records of time and materials used in providing Services where billing is based on time and materials.
3.2 Service Provider is responsible for all Service Provider Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
4. Customer’s Obligations.
4.1 Customer is responsible for maintaining the security, legality, and operational suitability of its systems, hardware, software, and data unless expressly stated otherwise in a SOW. In connection therewith, Customer shall:
(a) cooperate with Service Provider in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to these Terms and who will have the authority to act on behalf of Customer with respect to matters pertaining to these Terms (the “Customer Contract Manager”). If no Customer Contract Manager is identified in an applicable SOW or if a previously identified Customer Contract Manager is no longer available to Service Provider, then the Customer Contract Manager will be the person (i) who accepted the SOW, and/or (ii) who is generally designated by Customer during the course of relationship to provide Service Provider with direction or guidance. Service Provider will be entitled to rely upon directions and guidance from the Customer Contract Manager until Service Provider is affirmatively made aware of a change of status of the Customer Contract Manager. Customer agrees that it will not use a ticketing system or help desk request to notify Service Provider about the change of a Customer Contract Manager nor leave a recorded message for Service Provider informing it of a change to the Customer Contract Manager.
(b) provide Service Provider Personnel such access to Customer’s premises and such office accommodation and other facilities and equipment and networks as may reasonably be requested by Service Provider, for the purposes of performing the Services and each Project. Without limiting the generality of the foregoing, Customer hereby grants to Service Provider and Service Provider’s designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment as necessary to enable Service Provider or Third Party Providers, as applicable, to provide the Services and/or Third Party Services. Depending on the Service, Customer acknowledges that Service Provider may be required to install one or more software agents into the Environment through which such access may be enabled. It is Customer’s responsibility to secure, at its own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for Service Provider or its Third Party Providers to provide Services to the Environment and, if applicable, at Customer’s designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by Customer at all times. Service Provider shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve;
(c) implement and maintain reasonable physical security for all managed hardware and related Devices in Customer’s physical possession or control. Customer is strongly advised to adhere to the following security measures: (i) physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment, (ii) an alarm system to mitigate and/or prevent unauthorized access to the premises at which the protected equipment is located, (iii) fire detection and retardant systems, and (iv) periodic reviews of personnel access rights to ensure that access policies are being enforced, and to help ensure that all access rights are correct and promptly updated;
(d) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of these Terms;
(e) provide such Customer Materials and/or information as Service Provider may request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects (including the maintenance and preservation of all passwords, keys, access codes, activations codes and other similar words, phrases and codes);
(f) refrain from modifying or moving the Environment or installing software in the Environment unless Service Provider expressly authorizes such activity and to take all actions reasonably necessary to prevent any third party from making any alterations to any hardware or software subject to the Services. In all situations (including those where Service Provider is co-managing an Environment with Customer’s internal IT department), Customer agrees and understands that Service Provider will not be responsible for changes to the Environment or issues that arises from those changes that are not authorized by Service Provider. Customer may not use the Services to engage in unlawful activity, distribute malicious software, or conduct network attacks. Service Provider may suspend Services if such activity is detected;
(g) ensure that all Customer Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal or industry standards or requirements, abide by terms of any warranty issued by any OEM and related software subject to the Services, and keep in working order all files, directories, and code associated with any website controlled by Customer;
(h) obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services, the Environment, installation of any Service Provider Equipment, the use of Customer Materials, and the use of the Customer Equipment in relation to the Service Provider Equipment, in all cases before the date on which the Services are to start. If Service Provider asks for proof of authenticity and/or licensing, Customer must provide Service Provider with such proof. If Service Provider requires certain minimum hardware or software requirements in a SOW or otherwise (“Minimum Requirements”), Customer agrees to implement and maintain those Minimum Requirements as an ongoing requirement of Service Provider providing the Services.
(i) keep, maintain, and ensure all Service Provider Equipment, and shall not dispose of or use any Service Provider Equipment other than in accordance with Service Provider’s written instructions or authorization;
(j) notify Service Provider promptly of any operational or other errors or problems with regard to any hardware or software subject to the Services and not attempt to repair any such error or other problem and to maintain reasonable and appropriate levels of physical and electronic security and protection from all environmental or physical perils, loss of data and/or any harmful or malicious electronic files. Customer agrees that if, in Service Provider’s discretion, a hardware or software issue requires vendor or Original Equipment Manufacturer (“OEM”) support, Service Provider may contact the vendor or OEM (as applicable) on Customer behalf and invoice Customer for all fees and reasonable costs involved in that process. Customer shall also be responsible for and maintain a support contract with any of Customer’s critical lone of business applications and hardware;
(k) To comply with all copyright and/or other Intellectual Property Rights of third parties, as required by any applicable Law;
(l) Except as otherwise a Service to be performed by Service Provider under a SOW, to perform all patches, updates on hardware or software subject to the Services in a timely manner and in accordance with the instructions provided to Customer by the manufacturer in connection with such updates (“Updates”). If Updates are provided to Customer as part of the Services, Service Provider will implement and follow the manufacturers’ recommendations for the installation of Updates; however, Customer agrees and understands that Service Provider (i) does not warrant or guarantee that any Update will perform properly, (ii) will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, and (iii) reserves the right, but not the obligations, to refrain from installing an Update until Service Provider has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware subject to the Services; and
(m) To comply fully with all reasonable specifications, rules, regulations and policies governing the Services provided to Customer by Service Provider. Such rules, regulations and policies shall be subject to change from time to time in Service Provider’s sole discretion.
4.2 If Service Provider’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
4.3 Without limiting the generality of the foregoing, Customer agrees and understand that it alone, and not Service Provider, is responsible for Customer’s own compliance with all Laws, including all confidentiality and security requirements, and any and all such requirements of the HIPAA, Gramm-Leach-Bliley Act, USA Patriot Act (along PCI compliance and compliance with all network rules applicable to VISA, MasterCard, Discover, and/or other networks). Unless expressly stated in a Statement of Work, the Services are not intended to ensure Customer’s compliance with any law, regulation, or regulatory framework.
4.4 Customer warrants and represents that Customer knows of no Law governing Customer’s business that would impede or restrict Service Provider’s provision of the Services, or that would require Service Provider to register with, or report Service Provider’s provision of the Services (or the results thereof), to any government or regulatory authority. Customer agrees to promptly notify Service Provider if Customer becomes subject to any of the foregoing which, in Service Provider discretion, may require a modification to the scope or pricing of the Services. Similarly, if Customer is subject to responsibilities under any applicable Law (including, but not limited to, HIPAA, Gramm-Leach-Bliley Act, and USA Patriot Act), then Customer agrees to identify to Service Provider any data or information subject to protection under that Law prior to providing such information to Service Provider or, as applicable, prior to giving Service Provider access to such information.
4.5 Customer understands and agrees that data loss or network failures in its Environment may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure, Customer must maintain proper security for its computer and information systems, including Updates. Customer will adhere to Updates and maintain specific security standards, policies, procedures including those set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework. It is understood that within the Services provided it is not the intent for Service Provider to provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for Customer unless otherwise expressly specified in a Scope of Work. Customer shall be solely responsible for: (a) maintaining its own incident response plan and cyber insurance coverage in amounts sufficient to cover the costs of Incident Response Services, including digital forensic investigation and regulatory breach notification; (b) engaging and compensating any legal counsel, forensic investigators, breach notification vendors, or crisis communications consultants required in connection with a Security Incident; and (c) timely notifying Service Provider of any Security Incident or suspected Security Incident that may affect the Services or Service Provider’s systems. Customer’s failure to maintain adequate cyber insurance or an incident response plan shall not impose any additional obligation or liability on Service Provider.
4.6 Customer acknowledges that no cybersecurity solution is completely effective and that malware, ransomware, unauthorized access, or other security incidents may occur despite the use of industry-standard security tools. Service Provider does not guarantee that all threats will be detected, prevented, or remediated.
4.7 Customer acknowledges that Service Provider may, from time to time, provide specific advice or instructions related to the Services (“Advice”), such as upgrading hardware or software, increasing capacity or performance, or avoiding actions that compromise security or disrupt the Environment. Customer is strongly encouraged to promptly implement such Advice, which may require additional purchases or investments at Customer’s sole expense. Service Provider is not liable for any issues, including downtime or security incidents, resulting from Customer’s failure to follow Advice. If, in Service Provider’s judgment, Customer’s failure to follow Advice makes it economically or technically unreasonable to continue providing Services, Service Provider may terminate the affected Services for cause with notice. Unless expressly stated in a SOW, any remediation required due to Customer’s failure to follow Advice, unauthorized modifications, or failure to meet or maintain Minimum Requirements is outside the scope of Services and will require additional fees.
5. Customer is solely responsible for its own compliance with all applicable Laws, regulations, and industry standards governing the use of artificial intelligence, including any requirements related to transparency, disclosure, bias, fairness, or the use of automated decision-making. Unless expressly stated in a SOW, the Services are not designed or intended to ensure Customer’s compliance with any AI-specific law or regulation. Customer shall promptly notify Service Provider if Customer becomes subject to any AI-related law or regulation that would restrict or require modification of Service Provider’s use of AI Tools in the provision of the Services. Change Orders.
5.1 If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing in accordance with the notice provisions in Section 17.4. Service Provider shall, within a reasonable time (not to exceed 14 days) after receiving a Customer-initiated request, or at the same time that Service Provider initiates such a request, provide a written estimate to Customer of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; (d) any other impact the change might have on the performance of these Terms; and (e) any other information reasonably requested by the Customer.
5.2 Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 17.10.
5.3 Any costs, fees, or expenses incurred by Service Provider in connection with Incident Response Services that are not expressly included in an applicable SOW, including without limitation digital forensic investigation, evidence preservation, third-party forensic vendor fees, expedited response labor, after-hours support, regulatory notification assistance, legal hold support, and any related travel or out-of-pocket expenses, shall be billed to Customer on a time-and-materials basis at Service Provider’s then-current rates, plus any applicable emergency/expedited service surcharge, unless otherwise agreed in a separate SOW or Change Order. Customer shall pay all such invoices within 15 days of receipt. For the avoidance of doubt, Service Provider’s obligation to provide any Incident Response Services is contingent upon Customer’s prior written approval of the applicable fees and scope.
6. Term and Termination.
6.1 Term. The term of Services will be specified in the applicable SOW.
6.2 Renewal. Upon expiration of any initial term described in an SOW (the “Initial Term”), the term shall automatically renew for additional one (1) year terms unless a party provides written notice of nonrenewal at least sixty (60) days prior to the end of the then-current term (each a “Renewal Term” and together with the initial term, the “Term”). If the Term is renewed for one or more Renewal Term, these Terms during each Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal, subject to any change in fees in accordance with Section 7.5. If either party provides timely notice of nonrenewal, then these Terms shall terminate on the expiration of the then-current Term, unless sooner terminated as provided in this Section 6.
6.3 Other Termination. Service Provider, in its sole discretion, may terminate these Terms or any SOW, in whole or in part, at any time without cause, by providing at least thirty (30) days’ prior written notice to Customer. If Customer terminates these Terms (or any applicable SOW) for a reason other than as set forth in this Section 6 prior to the end of the Term or any subsequent Renewal Term, or if Service Provider terminates these Terms (or any applicable SOW) for a reason set forth in Section 6.4 below, in addition to any other amounts due to Service Provider under these Terms, Customer shall pay to Service Provider damages equal to one hundred percent (100%) of the fees due during the remaining portion of the Initial Term, any Renewal Term, and/or SOW in effect at the time of such termination. For the avoidance of doubt, the foregoing sentence will apply such that Customer will also be responsible to pay to Service Provider an amount equal to one hundred percent (100%) of the fees that would otherwise be due and payable under an upcoming Renewal Term if Customer fails to abide by the requirements of Section 6.2 by terminating these Terms after the expiration of sixty (60) day period described therein.
6.4 Termination for Cause.
(a) Either party may terminate these Terms or any SOW, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (i) materially breaches these Terms, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (ii) becomes insolvent or admits its inability to pay its debts generally as they become due; (iii) becomes subject, voluntarily or involuntarily, to any proceeding under any Law relating to domestic or foreign bankruptcy or insolvency, which is not fully stayed within twenty (20) business days or is not dismissed or vacated within forty-five (45) days after filing; (iv) is dissolved or liquidated or takes any corporate action for such purpose; (v) makes a general assignment for the benefit of creditors; or (vi) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b) In the event that Customer or any of its staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to Customer, then in addition to Service Provider’s other rights under these Terms, Service Provider will have the right upon providing Customer with ten (10) days prior written notice, to terminate the Services, these Terms, and/or any applicable SOW.
6.5 Effects of Termination or Expiration. Upon expiration or termination of these Terms for any reason:
(a) Service Provider shall (i) promptly deliver to Customer all Deliverables (whether complete or incomplete) for which Customer has paid, all Customer Equipment and all Customer Materials in its possession, (ii) promptly remove any Service Provider Equipment located at Customer’s premises, (iii) provide reasonable cooperation and assistance to Customer upon Customer’s written request and at Customer’s expense in transitioning the Services to a different Service Provider (subject to subparagraph (d) below), and (iv) on a pro rata basis, repay all fees and expenses paid in advance for any Services not performed or Deliverables not provided (except to the extent Service Provider is permitted to retain fees in accordance with Section 6.3 above).
(b) Unless otherwise expressly agreed to by the parties, each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information, (ii) permanently delete all of the other party’s Confidential Information from its computer systems, and (iii) certify in writing to the other party that it has complied with the requirements of this clause.
(c) If Customer fails or refuses to grant Service Provider access as described herein, or if any of the Service Provider Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Service Provider-supplied software is missing, Service Provider will have the right to offset against amounts otherwise owing to Customer and/or invoice Customer for, and Customer hereby agrees to pay immediately, the full replacement value of any and all missing or damaged items.
(d) In the event that Customer requests Service Provider’s assistance to transition away from the Services, Service Provider will provide such reasonable assistance if (i) all fees due and owing to Service Provider are paid to Service Provider in full prior to Service Provider providing its assistance to Customer, and (ii) Customer agrees to pay Service Provider’s then-current hourly rate for such assistance, with up-front amounts to be paid to Service Provider as it may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Customer also understands and agrees that any software configurations that Service Provider custom creates or programs for Customer are Service Provider’s proprietary information and shall not be disclosed to Customer under any circumstances. Unless otherwise expressly stated in a SOW, Service Provider will have no obligation to store or maintain any Customer data in its possession or control beyond five (5) calendar days following the termination of the applicable Services, these Terms and/or the applicable SOW. Service Provider will be held harmless for, and indemnified by Customer against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Service Party’s deletion of Customer’s data beyond the time frames described in this section.
6.6 Survival. The rights and obligations of the parties set forth in this Section 6.6 and Section 1, Section 9, Section 10, Section 12, Section 6.5, Section 13, Section 14, and Section 17, and any right or obligation of the parties in these Terms which, by its nature, should survive termination or expiration of these Terms, will survive any such termination or expiration of these Terms.
6.7 Multi-Year Commitments and Discounted Pricing. In certain cases, Service Provider may offer Customer discounted pricing, onboarding incentives, or other commercial concessions in exchange for Customer committing to a longer Initial Term (e.g., three (3) to five (5) years) as specified in the applicable SOW. Where such discounted pricing or incentives are provided, Customer acknowledges that such pricing is conditioned upon Customer maintaining the agreed Initial Term. If Customer terminates the applicable SOW prior to the expiration of the agreed Initial Term for any reason other than Service Provider’s uncured material breach, Service Provider shall be entitled to recover: (a) any unpaid amounts due for Services provided through the termination date; and (b) the value of any discounts, incentives, or onboarding costs that were amortized or provided in consideration of the longer Initial Term, as reasonably determined by Service Provider. The parties may document the specific pricing adjustments, discounts, or amortization structure in the applicable SOW.
7. Fees and Expenses; Payment Terms.
7.1 In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under these Terms, Customer shall pay the fees set forth in the applicable SOW.
7.2 Where the Services are provided on a time and materials basis: (a) the fees payable for the Services shall be calculated in accordance with Service Provider’s daily or hourly fee rates set forth in the applicable SOW; (b) Customer shall reimburse Service Provider, at Service Provider’s actual cost, for any materials, machinery, equipment, and third-party services, including Third Party Providers (collectively, “Materials”), reasonably necessary for the provision of the Services. Except as otherwise provided in these Terms, Service Provider shall obtain Customer’s written consent prior to the purchase of all Materials, which shall not be unreasonably withheld; and (c) Service Provider shall issue invoices to Customer monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 7.2, together with a detailed breakdown of any expenses for such month incurred in accordance with Section 7.4.
7.3 Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable SOW. The total price shall be paid to Service Provider in installments, as set out in the SOW. On achieving a Project Milestone and/or at the end of a period specified in the applicable SOW in respect of which an installment is due, Service Provider may, but is not required to, issue invoices to Customer for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 7.4.
7.4 Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
7.5 The parties agree that Service Provider may increase its fee rates as follows:
(a) With respect Services provided on a time and materials basis, Service Provider may increase its fee rates specified in the applicable SOW upon written notice to Customer; provided, that: (a) Service Provider provides Customer written notice of such increase at least thirty (30) days prior to the effective date of such increase; and (b) such increases occur no more frequently than once per every six (6) months of the Term.
(b) With respect to Services provided on a recurring basis or managed service, Service Provider may increase its fee rates specified in the applicable SOW on an annual basis beginning on the first anniversary of the applicable SOW commencement date. Unless otherwise stated in the applicable SOW, Service Provider may implement a fee adjustment, to reflect (i) the deployment, licensing (whether new or continuing), or maintenance of new or replacement software, tools, or platforms required due to changes in applicable industry standards, regulatory requirements, or cybersecurity best practices, or (ii) material changes or enhancements to Service Provider’s service delivery framework, infrastructure, or underlying technology stack that increase Service Provider’s cost of providing the Services. Service Provider shall, upon reasonable request, provide a high-level summary of the basis for such adjustment. Service Provider will endeavor to not allow such fee adjustment to exceed six percent (6%) in any twelve (12) month period and further, Service Provider will provide Customer with at least thirty (30) days’ written notice prior to the effective date of any such adjustment.
7.6 Generally, all recurring monthly prices anticipate automatic monthly recurring payment by Customer. If applicable, recurring payments made by ACH will be deducted from Customer’s designated bank account on the first business day of the month in which the Services are to be provided, or if applicable, Customer’s designated credit card will be charged on the first business of the month in which the Services are to be provided. All other non-recurring Services will be due upon receipt of invoice which Service Provider shall issue to Customer in accordance with the terms of this Section, and Customer shall pay all invoiced amounts due to Service Provider within thirty (30) days after Customer’s receipt of such invoice. All payments hereunder shall be in US dollars and, other than payments by ACH and/or credit card, shall be made by check or wire transfer. To the extent permitted by third party processors and network rules, Customer shall also be responsible for all processing fees incurred by Service Provider when processing Customer’s payment by credit card and/or ACH.
7.7 Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder. Any such taxes, duties, and charges currently assessed, or which may be assessed in the future, that are applicable to the Services are for the Customer’s account, and Customer hereby agrees to pay such taxes.
7.8 Amounts owing to Service Provider that remain unpaid for more than fifteen (15) days after due will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1% per month or the maximum allowable rate of interest permitted by applicable Law. Service Provider reserves the right (in addition to and not in lieu of its other rights hereunder), but not the obligation, to suspend part or all of the Services without prior notice to Customer in the event that any portion of undisputed fees are not timely received by Service Provider. Monthly or recurring charges (as applicable) shall continue to accrue during any period of suspension. Notice of disputes related to fees must be received by Service Provider within thirty (30) days after the applicable Service is rendered or the date on which Customer pays an invoice, whichever is later; otherwise, Customer waives its right to dispute the fee thereafter. A re-connect fee of up to five percent (5%) may be charged to Customer if Service Provider suspend the Services due to Customer’s nonpayment. Time is of the essence in the performance of all payment obligations by Customer. If Service Provider is required to refer Customer’s account to Collections or to start any Collections-related action to recover undisputed fees, Service Provider will be entitled to recover all costs and fees Service Provider incurs in the Collections process, including, but not limited to, reasonable attorneys’ fees and costs.
8. Third Party Services; Equipment.
8.1 Portions of the Services may be acquired from, resold from, and/or rely upon the services of, third party vendors, manufacturers, or providers (“Third Party Provider”). Third Party Providers may provide services such as data hosting services, help desk services, malware detection services, domain registration services, data backup/recovery services, other security related services, and/or next generation technology solutions (each, a “Third Party Service”). Not all Third Party Services will be expressly identified as being provided by a Third Party Provider, and at all times Service Provider reserves the right to utilize the services of any Third Party Provider or to change Third Party Providers in its sole discretion as long as the change does not materially diminish the Services that Service Provider is obligated to provide to Customer. Customer understands and agrees that Third Party Providers are not Service Provider’s contractors, subcontractors, or otherwise under its managerial or operational control. While Service Provider will endeavor to facilitate a workaround for the failure of a Third Party Service, Service Provider will not be responsible, and will be held harmless by Customer, for any failure of any Third Party Service as well as the failure of any Third Party Provider to provide such services to Service Provider or to Customer. Service Provider does not control and is not responsible for the performance, availability, security, or reliability of Third Party Services. Customer’s use of Third Party Services is subject to the applicable provider’s terms and conditions.
8.2 Portions of the Services may require Customer to accept the terms of one or more third party end user license agreements with Third Party Providers (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to Customer, then Customer hereby grants Service Provider permission to accept the EULA on Customer’s behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. Customer agrees to be bound by the terms of such EULAs and will look only to the applicable Third Party Provider for the enforcement of the terms of such EULAs. If, while providing the Services, Service Provider is required to comply with a third-party EULA and the third party EULA is modified or amended, Service Provider reserves the right to modify or amend any applicable SOW with Customer to ensure Service Provider’s continued compliance with the terms of the third party EULA.
8.3 Under no circumstances will Service Provider be responsible for any data lost, corrupted, or rendered unreadable due to (i) communication and/or transmissions errors or related failures (whether onsite or cloud-based), (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) Service Provider failure to backup or secure data from portions of the Environment that were not expressly designated in the applicable SOW as requiring backup or recovery services. Unless expressly stated in writing by Service Provider, Service Provider does not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.
8.4 Customer hereby represents and warrants that Service Provider is authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by Customer. Unless otherwise stated in writing by Service Provider, Devices may not receive or benefit from the Services while the Devices are detached from, or unconnected to, the Environment. Customer is strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to Service Provider and are not expressly covered under a managed service plan from Service Provider (“Unknown Devices”). Service Provider will not be responsible for the diagnosis of, any failures due to, or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and Service Provider will not be obligated to provide the Services to any Unknown Devices.
8.5 All Service Provider Equipment is licensed to Customer and is neither owned by Customer nor leased to Customer. Upon the termination of applicable Services, Customer’s license to use the Service Provider Equipment shall immediately terminate, and thereafter all Service Provider Equipment must be returned to Service Provider immediately at Customer’s expense. All configurations on the Service Provider Equipment are Service Provider’s proprietary information and will not be circumvented, modified, or removed by Customer without Service Provider prior written consent.
9. Confidential Information.
9.1 The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services and Deliverables; and (c) to immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
9.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (d) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.
9.3 Customer acknowledges that the use of AI Tools may involve the transmission, processing, or temporary storage of Customer data (including Confidential Information) by AI Tool providers, including Third Party Providers. Service Provider will use commercially reasonable efforts to select AI Tools that maintain appropriate data handling practices; however, Service Provider does not control the data handling practices of Third Party AI Tool providers and shall not be liable for any data exposure, retention, or use by such providers. Customer consents to the processing of its data by AI Tools as reasonably necessary for Service Provider to perform the Services, and Customer agrees to notify Service Provider in writing prior to providing any data that is subject to specific regulatory restrictions (including HIPAA, GLBA, or similar Laws) that would prohibit processing by AI Tools. Service Provider shall have no obligation to use AI Tools in connection with data that Customer identifies as restricted under this provision.
10. Representations and Warranties.
10.1 Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
(b) it has the full right, power, and authority to enter into these Terms, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;
(c) the execution of these Terms by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
(d) when executed and delivered by such party, these Terms will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2 Service Provider represents and warrants to Customer that:
(a) it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under these Terms;
(b) it is in compliance with, and shall perform the Services in compliance with, all applicable Laws;
(c) (i) to Service Provider’s knowledge none of the Services, Deliverables, and Customer’s use thereof infringe or will infringe any registered or issued patent, copyright or trademark of any third party arising under the Law of the United States, and, (ii) as of the date hereof, there are no pending or, to Service Provider’s knowledge, threatened claims, litigation, or other proceedings pending against Service Provider by any third party based on an alleged violation of such Intellectual Property Rights, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (x) any Customer Materials or any instruction, information, designs, specifications, or other materials provided by Customer to Service Provider, (y) use of the Deliverables in combination with any materials or equipment not supplied or specified by Service Provider, if the infringement would have been avoided by the use of the Deliverables not so combined, and (z) any modifications or changes made to the Deliverables by or on behalf of any Person other than Service Provider;
(d) the Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in these Terms and the applicable SOW for a period of 30 days after delivery to Customer. In the event of Service Provider’s breach of the foregoing warranty, Service Provider’s sole and exclusive obligation and liability and Customer’s sole and exclusive remedy shall be as follows:
(i) The Service Provider shall use reasonable efforts to cure such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 17.4.
(ii) In the event the Agreement is terminated in accordance with this Section 10.2(d), Service Provider shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for such Service or Deliverable less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
(iii) The foregoing remedy shall not be available unless Customer provides written notice of such breach within 30 days after delivery of such Service or Deliverable to Customer or with respect to changes made by any Person other than Service Provider or at Service Provider’s direction.
10.3 All equipment, machines, hardware, software, peripherals, or accessories purchased through Service Providers (“Third Party Products”) are generally nonrefundable once the item is ordered from Service Provider’s third party provider or reseller. If Customer desires to return a Third Party Product, then the Third Party Provider’s return policies shall apply. Service Provider does not guarantee that purchased Third Party Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided. Customer may be responsible for the payment of all re- stocking or return-related fees charged by the third party provider or reseller as well as reasonable charges for Service Provider time spent in processing returns on Customer’s behalf. Service Provider will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to Customer, but will have no liability whatsoever for the quality, functionality, or operability of any Third Party Products, and Service Provider will not be held liable as an insurer or guarantor of the performance, uptime, or usefulness of any Third Party Products. All Third Party Products are provided “as is” and without any warranty whatsoever as between Service Provider and Customer (including but not limited to implied warranties).
10.4 EXCEPT FOR THE EXPRESS WARRANTIES IN THESE TERMS, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THESE TERMS, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT AI TOOLS ARE INHERENTLY PROBABILISTIC AND MAY PRODUCE OUTPUTS THAT ARE INACCURATE, INCOMPLETE, OR OTHERWISE IMPERFECT. SERVICE PROVIDER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OUTPUT, RECOMMENDATION, ANALYSIS, OR CONTENT GENERATED BY AI TOOLS. CUSTOMER IS SOLELY RESPONSIBLE FOR INDEPENDENTLY VERIFYING AND VALIDATING ANY AI-GENERATED OUTPUT BEFORE RELYING UPON IT FOR ANY BUSINESS, OPERATIONAL, LEGAL, REGULATORY, OR FINANCIAL PURPOSE. SERVICE PROVIDER DISCLAIMS ALL LIABILITY ARISING FROM CUSTOMER’S RELIANCE ON AI-GENERATED OUTPUTS.
11. Indemnification.
11.1 Customer shall defend, indemnify, and hold harmless Service Provider and Service Provider’s Affiliates and their officers, directors, employees, agents, successors, and permitted assigns from and against all Losses arising out of or resulting from any third-party action arising out of or resulting from: (a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from the negligent or willful acts or omissions of Customer; (b) Customer’s breach of any representation, warranty, or obligation of Customer in these Terms; and (c) Customer’s use of, reliance upon, or distribution of any output, recommendation, or content generated by AI Tools, including any claim by a third party alleging infringement of Intellectual Property Rights arising from Customer’s use of AI-Generated Work Product; and (d) any regulatory action, investigation, or penalty arising from Customer’s failure to comply with applicable Laws governing the use of artificial intelligence in Customer’s industry or jurisdiction.
11.2 Service Provider shall promptly notify Customer in writing of any action and cooperate with the Customer at the indemnifying party’s sole cost and expense. Service Provider will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. Otherwise, Customer shall immediately take control of the defense and investigation of such action and shall employ counsel of its choice to handle and defend the same, at Customer’s sole cost and expense. Customer shall not settle any action in a manner that adversely affects the rights of Service Provider without Service Provider’s prior written consent. Service Provider’s failure to perform any obligations under this Section 11.2 shall not relieve Customer of its obligations under this Section 11.2. Service Provider may participate in and observe the proceedings at its own cost and expense.
12. Limitation of Liability.
12.1 Customer acknowledges and agrees that Service Provider would not provide any Services, or enter into any SOW or these Terms, unless Service Provider could rely on the limitations described in these Terms, including this Section.
12.2 IN NO EVENT WILL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THESE TERMS, ANY SOW, OR FOR ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THESE TERMS OR ANY SOW, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Service Provider shall have no liability whatsoever for any Losses arising from or related to: (i) the use, output, recommendation, or result of any AI Tool, including any inaccuracy, error, omission, or bias in AI-generated content; (ii) Customer’s reliance on any AI-generated output without independent verification; (iii) any regulatory action, fine, penalty, or third-party claim arising from Customer’s use of AI-generated output; (iv) any interruption, modification, or discontinuation of any AI Tool by a Third Party Provider, or (v) any costs, damages, or Losses arising from a Security Incident affecting Customer’s systems, data, or operations, including without limitation the cost of digital forensic investigation, incident response, breach notification, credit monitoring, regulatory fines or penalties, and any third-party claims, except to the extent directly caused by Service Provider’s gross negligence or willful misconduct; and (vi) any delay in incident response or forensic investigation resulting from Customer’s failure to timely notify Service Provider or to authorize the scope and fees for Incident Response Services.
12.3 IN NO EVENT WILL SERVICE PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (A “CLAIM”), EXCEED THE AMOUNT OF ACTUAL AND DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER (EXCLUDING HARD COSTS FOR LICENSES, HARDWARE, ETC.) TO SERVICE PROVIDER FOR THE SPECIFIC SERVICE UPON WHICH THE APPLICABLE CLAIM(S) IS/ARE BASED DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM ACCRUED OR $5,000, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDIES LISTED IN THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. SERVICE PROVIDER’S LIABILITY OBLIGATION SHALL BE FURTHER REDUCED TO THE EXTENT THAT A CLAIM IS CAUSED BY, OR THE RESULT OF, CUSTOMER WILLFUL OR INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, OR TO THE EXTENT THAT CUSTOMER FAILED TO REASONABLY MITIGATE (OR ATTEMPT TO MITIGATE, AS APPLICABLE) THE CLAIMS.
13. Insurance.
13.1 At all times during the Term of these Terms and for a period of three years thereafter, Customer shall procure and maintain, at its sole cost and expense, such types and amounts of insurance coverage as Service Provider may require from time to time.
13.2 All insurance policies required pursuant to this Section 13 shall: (a) be issued by insurance companies reasonably acceptable to Service Provider; (b) provide that such insurance carriers give Service Provider at least 30 days’ prior written notice of cancellation or non-renewal of policy coverage; provided that, prior to such cancellation, Customer shall have new insurance policies in place that meet the requirements of this Section 13; (c) waive any right of subrogation of the insurers against Service Provider; (d) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Service Provider shall be excess and non-contributory; and (e) name Service Provider and its Affiliates, including, in each case, all successors and permitted assigns, as additional insureds.
13.3 Without limiting the generality of the foregoing, if Customer is supplied with Service Provider Equipment, Customer will also acquire and maintain, at its sole cost, insurance for the full replacement value of that equipment and listing Service Provider as an additional insured / loss payee and the policy will not be canceled or modified during the term of the applicable Services without prior notification to Service Provider.
13.4 Upon the written request of Service Provider, Customer shall provide Service Provider with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 13, and shall not do anything to invalidate such insurance and provide proof of payment of any applicable premiums or other amounts due under the insurance policy. This Section 13 shall not be construed in any manner as waiving, restricting, or limiting the liability of either party for any obligations imposed under these Terms (including but not limited to, any provisions requiring a party hereto to indemnify, defend, and hold the other harmless under these Terms).
14. Non-Solicitation.
14.1 During the Term of these Terms and for a period of one (1) year thereafter, Customer shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under these Terms who is then in the employ of Service Provider. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 14.1, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this Section 14.1.
14.2 If Customer breaches Section 14.1, it shall, on demand, pay to Service Provider a sum equal to one year’s basic salary or the annual fee that was payable by the claiming party to that employee, worker, or independent contractor plus the recruitment costs incurred by the non-breaching party in replacing such person.
15. Non-Exclusivity
The Service Provider retains the right to perform the same or similar type of services for third parties during the Term of these Terms.
16. Force Majeure.
16.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, Law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) internet outages, shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.
16.2 During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance.
16.3 The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause. If the affected party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 16, the other party may thereafter terminate these Terms upon 15 days’ written notice.
17. Miscellaneous.
17.1 Customer shall, upon the request of Service Provider, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of these Terms.
17.2 The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17.3 Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms, or otherwise use the other party’s trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
17.4 All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 17.4). If to Service Provider, at the address first set forth above. If to Customer, at the address set forth in the applicable SOW.
17.5 For purposes of these Terms, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits, and Statements of Work refer to the Sections of, and Schedules, Exhibits, and Statements of Work attached to these Terms; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. These Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits, and Statements of Work referred to herein shall be construed with, and as an integral part of, these Terms to the same extent as if they were set forth verbatim herein.
17.6 These Terms, together with all Schedules, Exhibits, and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to these Terms with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of these Terms and those of any Schedule, Exhibit or SOW, the following order of precedence shall govern: (a) first, the applicable SOW; (b) second, these Terms; and (c) third, the Service Provider Proposal.
17.7 Customer may not assign, transfer, or delegate any or all of its rights or obligations under these Terms, including by operation of Law, change of control, or merger, without the prior written consent of Service Provider. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
17.8 These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms.
17.9 The headings in these Terms are for reference only and shall not affect the interpretation of these Terms.
17.10 These Terms may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.11 If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
17.12 These Terms shall be governed by and construed in accordance with the internal Laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of Law provision or rule (whether of the Commonwealth of Pennsylvania__ or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action, or proceeding arising out of or related to these Terms or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service, these Terms, or any SOW (except for issues of nonpayment by Customer) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
17.13 Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby. Except for undisputed collections actions to recover fees due to Service Provider (“Collections”), any dispute, claim or controversy arising from or related to these Terms, including the determination of the scope or applicability of these Terms to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) or if there is no AAA-certified arbitrator available within a twenty (20) mile radius of Service Provider office, then by any arbitration forum as determined by Service Provider, pursuant to the selected forum’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in a venue of Service Provider choice. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.
17.14 Each party acknowledges that a breach by a party of Section 9 (Confidentiality), and Section 14 (Non-Solicitation) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Terms to the contrary.
17.15 If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
SCHEDULE 1
(GLOSSERY OF TERMS)
“AAA” has the meaning set forth in Section 17.13.
“AI Tools” means any artificial intelligence, machine learning, large language model, generative AI, or similar technology-enabled tool, platform, or service (whether proprietary to Service Provider or provided by a Third Party Provider) that Service Provider may use in connection with the performance, delivery, optimization, or support of the Services, including but not limited to tools used for automation, diagnostics, threat detection, data analysis, code generation, content drafting, or other operational or administrative functions.
“Advice” has the meaning set forth in Section 4.7.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Change Order” has the meaning set forth in Section 5.2.
“Collections” has the has the meaning set forth in Section 17.13.
“Confidential Information” means any information that is treated as confidential by a party, including, but not limited to, all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of these Terms by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Customer” has the meaning set forth in the preamble.
“Customer Contract Manager” has the meaning set forth in Section 4.1(a).
“Customer Equipment” means any computers, equipment, systems, cabling, or facilities provided or otherwise owned by Customer and used directly or indirectly in the provision of the Services.
“Customer Materials” any documents, data, know-how, methodologies, software, and other materials provided to Service Provider by Customer or otherwise owned by Customer, including computer software, programs, reports, and specifications.
“Customer-Side Downtime” means any period of time during which delays or deficiencies are caused by Customer actions or omissions, including, but is not limited to, any period of time during which Service Provider requires Customer participation or Service Provider require information, directions, or authorization from Customer but cannot reach the Customer Contract Manager.
“Defaulting Party” has the meaning set forth in Section 6.4(a).
“Deliverables” means all documents, work product, and other materials that are delivered to Customer under these Terms or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in a SOW.
“Devices” has the meaning set forth in Section 8.4.
“Disclosing Party” means a party that discloses Confidential Information under these Terms.
“Environment” means, collectively, any computer network (cloud- based or otherwise), computer system, peripheral or device (virtual or physical) acquired, installed, maintained, monitored, or operated by Service Provider for Customer or on Customer’s behalf.
“EULA” has the meaning set forth in Section 8.1.
“Force Majeure Event” has the meaning set forth in Section 16.
“Impacted Data” has the meaning set forth in Section 4.6.
“Impacted Party” has the meaning set forth in Section 16.1.
“Initial Term” has the meaning set forth in Section 6.1.
“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Materials” has the meaning set forth in Section 7.2
“Minimum Requirements” has the meaning set forth in Section 4.1(h).
“OEM” has the meaning set forth in Section 4.1(j).
“Person” means an individual, corporation, partnership, joint venture, corporation, governmental authority, unincorporated organization, trust, association, or other entity.
“Project” means a project as described in a SOW.
“Project Milestone” means an event or task described in a SOW which shall be completed by the relevant date set forth in the SOW.
“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under these Terms.
“Renewal Term” has the meaning set forth in Section 6.2.
“Rules” has the meaning set forth in Section 17.13.
“Scheduled Downtime” means those hours, as determined by Service Provider but which will not occur between the hours of 9:00 AM and 5:00 PM Eastern Time, Monday through Friday (Federal holidays excluded) without Customer authorization or unless exigent circumstances exist, during which time Service Provider will perform scheduled maintenance or adjustments to the Environment. Service Provider will endeavor to provide Customer with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
“Service Provider” has the meaning set forth in the preamble.
“Service Provider Contract Manager” has the meaning set forth in Section 3.1(a).
“Service Provider Equipment” means any equipment, systems, cabling, or facilities provided by or on behalf of Service Provider and used directly or indirectly in the provision of the Services.
“Service Provider Personnel” means all employees and Permitted Subcontractors, if any, engaged by Service Provider to perform the Services.
“Service Provider Proposal” means Customer’s Request for Proposal for the Services and Service Provider’s response, describing how Service Provider proposes to carry out the Services and/or a Project.
“Services” mean the services to be provided by Service Provider under these Terms, as described in more detail in a SOW, and Service Provider’s obligations under these Terms, including, including, but not limited to, any licenses, services, or products that Service Provider sells or re-sells to Customer.
“SOW” or “SOW” means each SOW entered into by the parties as contemplated by these Terms, each of which describes, summarizes, and/or defines the scope and provision of the Services.
“Term” has the meaning set forth in Section 6.
“Transition Exception” means the first forty-five (45) days following the commencement date of any Service, as well as any period of time during which Service Provider is performing off-boarding-related services (e.g., assisting Customer in the transition of the Services to another provider, terminating a service, etc.).
“Third Party Provider” and “Third Party Service” have the meaning set forth in Section 8.1 .
“Third Party Products” has the meaning set forth in Section 10.3.
“Unknown Devices” has the meaning set forth in Section 8.4.
“Updates” has the meaning set forth in Section 4.1(l).
“Vendor-Side Downtime” means any delays or deficiencies caused by third party service providers, third party licensors, or “upstream” service or product vendors.
