ONLINE MASTER SERVICES AGREEMENT TERMS & CONDITIONS
These Online Information Technology Services Agreement Terms & Conditions (“Online Terms & Conditions”) incorporate by reference the applicable Information Technology Services Agreement (“Agreement”) and Statement(s) of Work (“SOW”) between Design Data Systems, Inc. d/b/a designDATA (“designDATA”) and the Client named in such SOW.
- Definitions. When used in the Agreement, terms appearing with an initial capital letter shall have the meanings specified in Schedule 1, below.
- Term. The term of this Agreement (“Term”) shall be co-extensive with the Period of Performance stated in each SOW unless sooner terminated pursuant to Section 14 of this Agreement. Unless otherwise agreed by the Parties in writing (e-mail exchanged by the representatives of each Party listed in the Agreement is acceptable), the termination of one SOW shall terminate this Agreement only with respect to that SOW and shall not terminate this Agreement with respect to any other SOW.
- Standard of Care & Use of Third Party Providers. Unless otherwise provided in this Agreement, during the Term, designDATA shall perform all Services to the standard of care of a reasonably prudent IT professional applying generally accepted industry standards, performing similar services under like conditions. However, any part of the Services performed or provided by Third Party Providers (including hardware and software products) shall be delivered and performed only to the standards stated in the relevant agreement(s) between DesignDATA and such Third Party Providers, which often cannot be negotiated. Client acknowledges and agrees that the functionality of any part of the Services supplied by Third Party Providers is subject to change, without notice, based on the terms and conditions of the relevant Third Party Provider agreements with DesignDATA, which can be found here: https://www.designdata.com/third-party-license-agreements/ all of which, where applicable to the Services, and are incorporated by reference into this Agreement. Where required by the applicable Third Party Provider Agreement(s), Client consents to the Third Party Provider engaging directly with Client to support the portion of the Services performed by such Third Party Provider. Client acknowledges, agrees, and accepts the risk that third party providers may make changes to third party provider agreements, and suspend or discontinue the services they provide in whole or in part, at any time, without notice or liability to designdata or client; client releases designdata from any liability or responsibility for any resulting damages or adverse consequences to client, from any such action by third party providers.
a. DesignDATA Cybersecurity. Subject to the terms and conditions in Section 6 and elsewhere in this Agreement, designDATA shall use Best Efforts to protect Client’s Designated Systems from unauthorized intrusion or any other breaches of security. designDATA shall have a Third Party conduct an annual SOC-1 and SOC-2 SSAE-18 type II audit of designDATA’s Designated Systems. designDATA’s audit results are available upon request. A Non-Disclosure Agreement is required before designDATA sends Client the audit results.
4. Independent Contractor. At all times when performing Services under this Agreement, designDATA shall be an independent contractor and not an employee, agent, joint venture, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either designDATA or any employee, agent, subcontractor, or Third Party Provider engaged by designDATA with respect to the Services. Such designDATA personnel shall not be entitled to the rights or benefits afforded to Client’s employees, including, but not limited to, disability or unemployment insurance, Workers’ Compensation, medical insurance, or sick leave. designDATA is responsible for making or providing Workers’ Compensation, unemployment, health care and other benefits and insurance, the payment and/or withholding of all taxes and/or payroll deductions, training expenses, permits, and licenses for designDATA and for all of designDATA’s employees as required by applicable law. designDATA shall also be responsible for requiring subcontractors to provide the foregoing for subcontractor employees. In performing the Services, designDATA may, at designDATA’s own expense, employ any assistants, employees, subcontractors, or Third Party Providers that designDATA deems necessary to perform the Services and may change or terminate Third Party Providers (including without limitation any of their products or services) without prior notice to Client. designDATA shall have the exclusive right and obligation to control the means and methods of performing the Services and be responsible to Client only for results. Anything to the contrary in this Agreement notwithstanding, nothing in this Agreement shall create an exclusive relationship between the Parties. Client acknowledges and agrees that designDATA shall have the right to provide IT services to clients and customers other than Client.
5. Billing & Increases in Contract Rates for Consulting Services, After Hours Services, or Emergency Service Rates. designDATA reserves the right to increase its Contract Rates and/or After Hours & Emergency Service Rates, prospectively, in thirty (30) days prior notice to Client. designDATA invoices for Consulting Service in minimum billing increments of one quarter (0.25) hour, during which such Services are rendered. Emergency and After-Hours Services are billed at minimum billing increments of one (1) hour.
6. Payment. Managed Services, Private Cloud Services (vHOST), Hardware as a Service (HaaS), Third Party Products and Services, Project Consulting Services are billed to and paid for by Client as stated in each SOW. Unless otherwise stated in the SOW, designDATA will bill and Client will pay for Services once each calendar month of the Term.
a. Late Invoices/Declined Payments. All invoices are due and payable within 30 days of receipt; any invoices not paid within thirty (30) days of the invoice date shall bear simple interest at the rate of 6.0% per annum, or the maximum rate allowed by law, if less than 6.0% until paid in full. An ACH payment that is returned for “non-sufficient funds” and/or declined credit card charges shall be subject to a minimum Fifty Dollar ($50) service fee, per attempt, until payment is confirmed. In the event Client fails to timely pay an invoice within 30 days of invoice date, designDATA may, at its option, cease performing further Services under this Agreement, and/or exercise its right to terminate this Agreement as set forth in Section 13, without waiving its right to any and all remedies afforded under this Agreement, applicable law or in equity.
b. Time Limit to Dispute Invoice. Client shall notify designDATA in writing of any error, inaccuracy, or inadequacy in any of the billings included on any invoice within forty-five (45) days of the date of the invoice. Failure to timely dispute any charge on an invoice shall be deemed an acceptance by Client of all stated amounts due included therein and a waiver of Client’s right to dispute the invoice in whole or in part.
c. Fee Estimates. For SOWs involving Project Consulting Services, work to be performed After Hours of Operation or Emergency Services not included in Managed Services or Private Cloud Services, and Services performed on a basis other than “fixed-fee”, Client acknowledges and agrees, as follows: (i) The estimated hours set forth on any project scope or otherwise provided by designDATA are merely designDATA’s good-faith estimates of the time, or range of times, within which each task may be completed; (ii) The actual time required to complete a task may be greater or less than designDATA’s estimate, which may be impacted by unanticipated matters or matters outside of designDATA’s control; (iii) Estimates and quotes provided by designDATA may contain assumptions upon which the estimated fees and costs are based, if actual conditions differ from the assumptions, costs may increase; (iv) designDATA is estimating the length of time required to render Project Consulting Services or Emergency Services, and Client shall pay for the actual time rendered by designDATA at the applicable hourly rates.
d. Payment for Hardware, Software & Maintenance Plans. Client shall pay the entire purchase price, in full, for hardware, software, and related maintenance or service plans (other than those included within SOWs for Monthly or Periodically Recurring Services). Once hardware, software, and related maintenance or service plans have been ordered by designDATA on behalf of Client, neither designDATA nor the manufacturer or software license owners will provide any refund or credit for the purchase price.
e. Taxes. In addition to the Service fees and rates specified in each SOW, Client shall pay or reimburse designDATA for all taxes however designated (and any amount legally levied instead of taxes) resulting from or related to the performance of the Services, except for taxes on or relating to the net income of designDATA and unemployment, Social Security and payroll taxes on designDATA personnel and subcontractors. If Client claims exemption from any taxes resulting from or related to the performance of the Services, Client will provide designDATA with the documentation required by the taxing authority to support such exemption. To the extent that Client is required to reimburse designDATA for any taxes, designDATA shall invoice Client for such taxes, which shall be due and payable immediately and become delinquent if not paid within thirty (30) days of invoice date.
f. Expenses Associated with Incompatibility. designDATA cannot and does not guarantee compatibility between the software or hardware tools used to provide the Services and the Designated System or Applications. In the event that an incompatibility is identified, designDATA will notify Client. Client is responsible for all Expenses required to resolve such incompatibilities. At Client’s request, designDATA will use its Best Efforts to work collaboratively with relevant Third Parties to facilitate resolution through a SOW for Project Consulting Services.
7. Confidential Information. On the Effective Date, the provisions of this Section 9 shall supersede and replace all prior non-disclosure or confidentiality agreements between the Parties. Each Party acknowledges that its employees, agents, and subcontractors may be exposed to Confidential Information of the other Party in the course of performance of this Agreement.
a. Mutual Confidentiality Obligations. Subject to the Warranties & Representations in Section 10, Client’s obligations under Section 11 and the limitations on liability in Section 15 of this Agreement, each Party acknowledges and agrees, with respect to the Confidential Information of the other Party, as follows: (i) each Party is the sole owner of all right, title, and interest in and to all of its own Confidential Information; (ii) each Party shall treat all Confidential Information of the other Party (“Disclosing Party”) in a confidential manner and not use or disclose, or cause such Confidential Information to be used or disclosed, except as necessary to perform their respective obligations under this Agreement, or as may be specifically authorized in writing by the Disclosing Party; (c) Before making any disclosure of Disclosing Party’s Confidential Information pursuant to a requirement of federal, state, or local law or regulation or a valid order issued by a court or governmental agency of competent jurisdiction (“Legal Order”), a Party who has received Confidential Information (“Receiving Party”) shall provide the Disclosing Party with 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. If, after providing such notice as required herein, a Receiving Party remains subject to a Legal Order to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which such Legal Order specifically requires.
b. Duration of Confidentiality Obligations. The obligations set forth in this Section 6 supersede and replace entirely, any previous Non-Disclosure or Confidentiality Agreement executed between the Parties, and shall continue for a period of three (3) years from the date of the receipt of Confidential Information or three (3) years from the date of termination of this Agreement, whichever occurs last.
c. Consent to Third Party Processing of Client Confidential Information. Client acknowledges that designDATA contracts with Third Party Providers who sell or license software or hardware that empowers designDATA to perform the Services, e.g., Client network monitoring, security, and/or data preservation and backup, among other things. As part of the Services, Client Confidential Information may be collected, stored, and transferred to Third Party Providers for processing. Third Party Providers may transmit, store, and process Client Confidential Information in locations outside the United States, by non-US citizens. Client is responsible for making any required notices or disclosures to, and obtaining any and all required consents from, Client and Client’s network users to allow designDATA to collect, store, transfer, and process all such Client information by designDATA and/or its Third Party Providers. Client also consents to designDATA and/or Third Party Providers collecting Client technical, maintenance and support information and using such information in anonymous aggregate for purposes of improving software, hardware, support, or other aspects of the Services.
8. Representations and Warranties/Disclaimers.
a. No Warranties regarding data restoration. designDATA will use its Best Efforts to perform the Services and make effective recommendations regarding data protection technologies but cannot affect the manufacturer’s product from a warranty perspective, nor guarantee that such Third Party products or technologies will be effective, free of bugs or other defects. The recoverability of data in the event of network or system failure is subject to the integrity of the media, success of backup procedures, and other factors that may be outside the control of designDATA. Therefore, designDATA cannot and does not make any representations, promises, or warranties that Client will be able to restore data as a result of following any such designDATA recommendations.
b. No Warranties Regarding Security of Client Confidential Information from Electronic Threats & Hacking. In providing the Services, designDATA shall use Best Efforts to see that Client Confidential Information is kept secure; however, Client understands, acknowledges and agrees as follows: (i) the nature of the Internet, e-mail and other forms of electronically storing and communicating information are subject to ever changing and evolving vulnerabilities, some or all of which cannot be reasonably anticipated or protected against even with the use of reasonable care, including, without limitation, Electronic Threats & Hacking; (ii) Anything in this Agreement or the description of Services to the contrary notwithstanding, designDATA makes no representation, warranty or guarantee that Client’s Confidential Information or IT systems will be protected from breach or exposure by Electronic Threats & Hacking; (iii) the rates and fees Client pays to designDATA under this Agreement have been set with the foregoing limitations on designDATA’s obligation to protect and secure Client’s Confidential Information and IT systems from Electronic Threats & Hacking; and designDATA would have charged substantially higher rates or fees, if designDATA had been willing to take on any such obligations to protect Client Confidential Information or IT systems from Electronic Threats & Hacking (which designDATA cannot and will not take on as a contractual or other obligation).
c. No Warranties re Service Availability. designDATA’s ability to provide the Services is dependent upon many factors, such as the uninterrupted supply of electricity, Internet service, and Third Party Provided software and hardware, which are not within designDATA’s control. designDATA CANNOT AND DOES NOT WARRANT THAT THE SERVICES WILL BE FREE FROM INTERRUPTION FROM POWER LOSS, LOSS OF INTERNET CONNECTION, LOSS OF SOFTWARE, APPLICATION OR HARDWARE AVAILABILITY, OR ANY OTHER SOURCE OF INTERRUPTION. CLIENT ACCEPTS THE RISK OF DATA LOSS, DATA CORRUPTION, AND ANY AND ALL DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM SERVICE INTERRUPTIONS, REGARDLESS OF CAUSE.
d. Client Warranty. Client hereby represents and warrants that the execution, delivery, and performance of this Agreement does not and shall not conflict with, breach, violate, or cause a default under any contract, agreement, instrument, order, judgment, or decree to which Client is a party or by which it is bound.
e. designDATA Limited Service Warranty & Exclusive Remedies for Breach of Warranty. designDATA represents and warrants that the Services it performs with its personnel and employees shall be performed in a competent and workmanlike manner, in accordance with the standard of care set forth in Section 3 Standard of Care, above. If Client notifies designDATA, in writing (email exchange through authorized representatives of the Parties is acceptable) and in reasonable detail, of the nature and extent of a failure in Service within thirty (30) days after the completion of the applicable Service(s), designDATA shall re-perform or cure any portion of such Service(s) that fails to satisfy the foregoing limited warranty. If designDATA determines that it is unable to re-perform or cure the Service(s) in a manner that complies with the foregoing warranty through the exercise of Best Efforts, designDATA shall, at its discretion, refund to Client the fee(s) paid for the portion of the Service(s) which failed to meet such warranty standard. The foregoing remedies of re-performance, cure, or discretionary refund of fee(s) shall be Client’s sole and exclusive remedy for any designDATA breach of warranty under this Agreement.
f. Limited Warranty From Third Party Providers. To the extent authorized under applicable Third Party manufacturer or Third Party Provider agreements, designDATA shall provide or assign to Client all Third Party product or service warranties associated with the hardware, equipment, software, or other services the Third Party provided in connection with the Services under this Agreement. Client acknowledges and agrees that: (i) Third Party Provider agreements for hardware, equipment, software, or services provided in connection with the Services, vary in the terms, conditions, and limited warranties they respectively provide; and some Third Party Provider agreements either may not provide any warranties, or may prohibit designDATA from transferring to Client any limited warranty they do provide; (ii) designDATA does not and will not provide any separate, independent or concurrent warranty of any kind or nature for Third Party hardware, equipment, software or services provided in connection with the Services; and (iii) Client shall make any warranty claims with respect to hardware, equipment, software or services supplied by Third Parties in connection with the Services, directly to the manufacturer, vendor, licensor or Third Party Provider of such hardware, equipment, software or services, and not to designDATA.
g. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS-IS,” “WHERE-IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DESIGNDATA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SERVICES. DESIGNDATA EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING, OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. USE OF THE SERVICES IS ENTIRELY AT CLIENT’S OWN RISK AND, EXCEPT AS SET FORTH IN THIS SECTION 7, DESIGNDATA SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR SUCH USE.
9. Client Obligations & Acceptable Use. Client acknowledges and agrees that (a) designDATA has no control over any content stored or transmitted by Client or its employees, agents, invitees, or customers through any of the Designated Systems, including, but not limited to, any designDATA controlled or provided Designated Systems, and (b) designDATA does not routinely monitor the content stored or transmitted through the Client’s Designated Systems. Therefore, Client shall defend, indemnify and hold harmless designDATA, its parent(s), subsidiaries and affiliates; all of their respective owners, shareholders, members, directors, officers, agents, employees, and contractors; and any and all of designDATA’s Third Party Providers performing all or any part of the Services, from and against any and all Claims arising out of, pertaining to, or imposed as a result of the data, documents, records, information, messages or content (collectively “Content”) stored or transmitted by Client or any of Client’s employees, agents, invitees or customers, through or in connection with any of Client’s Designated Systems, including, without limitation, any electronic media, device, server, hardware, equipment, software or service(s) that make up all or any portion of the Client’s Designated Systems or Services, including, without limitation, any Content that contains personal identifying information, credit card or bank account identifying information, personal health information protected by law.
a. Obligation to Refrain from Use of Prohibited Content. In addition, with respect to any Content which is fraudulent, false or misleading, or makes deceptive claims (e.g. “phishing” or violates generally accepted standards of Internet usage, is harmful to or interferes with designDATA’ provision of Services or any Third Party’s networks, equipment, applications, services, or Web sites (e.g., viruses, worms, Trojan horses, etc.); or is otherwise unlawful, pornographic, obscene, indecent, harassing, racially or ethnically offensive, harmful, threatening, discriminatory or defamatory, or which facilitates or promotes illegal actively, infringes on any Third Party intellectual property rights or is otherwise in violation of law, this Agreement or any applicable Third Party Provider agreement for the Services (collective “Prohibited Content”), Client shall not use the Services to store, distribute or transmit any Prohibited Content and designDATA shall have the right, but not the obligation, to immediately remove any Prohibited Content from designDATA owned or controlled Designated Systems, without prior notice or liability to Client, where designDATA reasonably suspects that such Content is prohibited by applicable law, the provisions of this Agreement or any applicable Third Party Provider agreement.
b. Client is responsible for determining whether the Services are appropriate for storage or processing of information subject to any specific law or regulation and for using the Services in a manner consistent with Client’s legal and regulatory obligations. Client is also responsible for responding to any requests from a Third Party regarding Customer’s use of the Services, e.g., a request to modify or delete Content, or to provide notice of or report a data security/breach, under the U.S. Digital Millennium Copyright Act, the European Union General Data Protection Act, the California Consumer Data Protection Act, the Virginia Consumer Data Protection Act or other applicable laws. Any notice Client may receive from designDATA under any applicable law governing reporting of a data security/breach shall not constitute an admission of fault, guilt, or liability with respect to the incident that is the subject of such notice or report.
c. Obligation to Report Unauthorized Access or Fraudulent Use of Services. Client shall promptly report to designDATA if it becomes aware of any fraudulent or unauthorized use of any of the Services. designDATA reserves the right to restrict, suspend, or discontinue providing any or all of the Services in the event of any suspected or actual fraudulent or unauthorized use by Client or any Third Party. designDATA shall not be liable for any damages whatsoever resulting from such fraudulent or unauthorized use of any of the Services.
d. Obligation to Comply With Export Regulatory Restrictions. Client represents and warrants that neither it nor its end users is (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity on the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce’s Denied Persons List or Entity List; or any other sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) otherwise the target or subject of any Sanctions and Export Control Laws. Client represents and warrants that it and/or its end users will not export, re-export, transfer, or otherwise make any of the Services available, directly or indirectly, to any country, region, individual or entity described in this Subsection 8d or in violation of, or for purposes prohibited by, Sanctions and Export Control Laws, including for proliferation-related end uses, and that it has adequate policies, procedures, and controls in place to comply with the foregoing obligations.
e. Access to Equipment. Client shall provide designDATA with full access to both designDATA owned and Customer owned equipment within Client’s Designated Systems for designDATA to provide warranty and maintenance work as part of the Services during normal business hours. designDATA shall use Best Efforts to provide warranty and maintenance work with a minimum of interference to Client’s business operations.
f. Performance review. Client shall meet periodically with designDATA at agreed upon periods of time for the purpose of reviewing designDATA’s performance and to resolve any outstanding issues arising from the SOW(s).
10. SPLA Duration & Compliance. Clients utilizing SPLA licensing acknowledge and agree that SPLA licensing is not perpetual. Client must maintain full compliance with all SPLA requirements, including without limitation, payment of applicable licensing fees, at Client’s expense. Client acknowledges and agrees that it will purchase and maintain any and all required SPLAs and support agreements, which are a condition precedent to designDATA’s ability to provide all or any part of the Services, including, without limitation those required for Microsoft products and services (e.g., Microsoft Azure, Microsoft 365, etc.). Client further consents and agrees that designDATA or the Third Party Provider shall have the right to automatically or periodically download and install any and all Updates or patches in, on or to the Designated Systems that are required by Third Party Providers to maintain software or hardware that makes up all or any part of the Services.
11. Insurance. During the Term, each Party shall provide and maintain, at its own expense, the following insurance with limits of liability as set forth below:
a. Workers’ Compensation coverage in at least the statutorily required amounts;
b. Employer’s Liability coverage in at least the same amount as General Liability coverage set forth above;
c. General Liability covering, among other things, contractual obligations under this Agreement, with single limits coverage of at least One Million Dollars ($1,000,000), with excess umbrella coverage of Five Million Dollars ($5,000,000);
d. Automobile Liability coverage for owned, unowned, rented, and/or leased motor vehicles as applicable, including uninsured and underinsured motorist coverage in at least One Million Dollars ($1,000,000);
e. Media, Tech, Data & Network Liability coverage of at least Five Million Dollars ($5,000,000); provided that such insurance coverage remains available and reasonably affordable.
All such insurance coverages shall be placed with responsible carriers reasonably acceptable to the other Party; and each Party shall name the other Party, its parent, subsidiaries, and affiliates as additional insured (except for Workers’ Compensation and Employer’s liability coverage). Upon request, each Party shall promptly provide the other Party with a Certificate of Insurance as evidence of the coverages required under this Agreement; such coverage shall not be terminated by a Party without providing at least thirty (30) days’ prior written notice to the other Party.
12. Indemnity. Client (the “Indemnitor”) agrees to defend, indemnify, and hold harmless designDATA, its parent, subsidiaries, and affiliates; and all of their respective owners, shareholders, members, directors, officers, agents, employees, and contractors (each an “Indemnified Party”) from and against, any and all Claims arising out of or connected with the performance of this Agreement, except to the extent caused by the negligence, gross negligence or willful misconduct of the Indemnified Party, its agents, employees or contractors, in performing, or failing to perform obligations under or with respect to this Agreement.
13. Limitations on Liability & Cap on Damages.
a. Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, OR BUSINESS INTERRUPTION) ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
b. Cap on Damages. As a condition precedent to entering this Agreement, each Party acknowledges, understands, and agrees, as follows: THE TOTAL AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES FOR SERVICES (EXCLUSIVE OF FEES FOR EQUIPMENT PURCHASED) PAID BY CLIENT TO designDATA PURSUANT TO THIS AGREEMENT FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO A CLAIM OF LIABILITY.
c. Exceptions to Limitation on Liability and Cap on Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 15, AND EXCEPT AS PROVIDED TO THE CONTRARY IN ANY APPLICABLE THIRD PARTY PROVIDER AGREEMENT FOR THE SERVICES, THE LIMITATIONS ON LIABILITY AND CAP ON DAMAGES SET FORTH IN THIS SECTION 15 SHALL NOT APPLY TO:
i. ANY CLAIM FOR INDEMNIFICATION UNDER THIS AGREEMENT to the extent of required insurance coverage, actually available and applied.
ii. ANY CLAIM INVOLVING WILLFUL REPUDIATION OF THIS AGREEMENT BY EITHER PARTY; OR
iii. ANY CLAIM BY A PARTY FOR WHICH LIQUIDATED DAMAGES IS PROVIDED UNDER THIS AGREEMENT.
d. Release. Client, on behalf of itself and any affiliates or subsidiaries, releases designDATA and all of its parents, subsidiaries, and affiliates from any and all liability in excess of the limited liabilities that are set forth in this Agreement, including any claim for common law or statutory indemnity or contribution, whatsoever. Client acknowledges and agrees that it is entering this Agreement for business purposes only and therefore knowingly and voluntarily releases any Claim(s) under any consumer protection or unfair trade practices law(s), to the maximum extent permitted under applicable law.
a. Termination for Breach or Insolvency. At any time during the Term, either Party may, in addition to any other rights or remedies available to it at law or in equity, immediately terminate this Agreement if the other Party shall fail to cure any material default in any performance obligation or duty contained in this Agreement, and such default shall continue for ten (10) days for default involving the payment of money, or thirty (30) days for all other defaults, after written notice and opportunity to cure has been given to the breaching Party by the non-breaching Party. Subject to the provisions of Section 12 Limitation on Liability & Cap on Damages, termination of this Agreement shall be in addition to any other rights or remedies the Parties may have under this Agreement, applicable law, or in equity.
b. Effect of Termination by Client Without Cause. At any time during the Term, if Client elects to terminate this Agreement without cause, i.e., without material breach by designDATA, then Client shall be liable to designDATA for the following: (i) an early termination charge equal to fifty percent (50%) of the current Managed Service Fees (if any), multiplied by the number of months (or Periods, as applicable) remaining in the existing Term (due in full within 60 days of the termination date); (ii) Service or Emergency charges, if any, accrued but unpaid as of the termination date (billed or unbilled); and (iii) any Third Party Provider charges and/or Expenses, or contractual obligations incurred by designDATA prior to or as a direct result of Client’s breach or cancellation (e.g., cancellation charges or annual software license fees). The Parties agree that the foregoing amounts constitute liquidated damages and are not intended as a penalty, nor subject to the Limitation on Liability and Cap on Damages set forth in Section 12 above.
c. Offboarding Charge. Upon termination of this Agreement for any reason, designDATA will provide a detailed offboarding plan to the Client within thirty (30) days of the termination date. The offboarding plan will outline the steps and timeline for transitioning the Services to an alternative provider or in-house team, as determined by the Client. designDATA will invoice the Client for the transition assistance as specified in the offboarding plan at Contract Rates.
d. Payment of Outstanding Invoices. In the event of termination for any reason, all outstanding invoices for Services through the date of termination shall be paid by the Client within thirty (30) days of the termination date.
15. Dispute Resolution.
a. Informal Dispute Resolution. If a dispute should arise between the Parties regarding the performance of this Agreement, before exercising any other remedies at applicable law or in equity, one Party shall notify the other of the details of the dispute and request a meeting to informally resolve the issue. Upon receipt of any such notice, both Parties shall act in good faith to promptly meet and make good faith efforts to resolve the dispute informally within ten (10) business days. Such meeting shall occur in person or via teleconference or videoconference, with both Parties represented by management personnel with actual authority to resolve the dispute.
b. Other Remedies. If informal dispute resolution shall have failed to resolve the dispute, only then may either Party seek any remedy available under applicable law or in equity through the court system as set forth in Section 20, below.
16. Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (excepting only Client payment for Services when due) to the extent such failure or delay is proximately caused by circumstances beyond that Party’s reasonable control and occurring without its fault or negligence, including, without limitation, force majeure events such as any of the following: act of God, act of war or the public enemy, terrorism, civil unrest, mass shooting, earthquake, labor actions, tsunami, flooding, fire, epidemics, pandemics, quarantine restrictions, work stoppage, volcanic eruption, avalanche, tornado, extreme temperatures, any National Weather Service named or Category IV or higher storm or hurricane; material changes in applicable laws, rules or regulations adversely impacting the Services, failure of suppliers, Third Party Providers or carriers to meet performance obligations or provide Services under this Agreement. As a condition precedent to a claim of force majeure, the Party experiencing the difficulty shall give the other Party prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay caused by a force majeure event.
17. Covenant Not to Hire. Each Party agrees not to directly or indirectly solicit or offer employment to any employee, contractor, or subcontractor of the other Party, directly or indirectly (i.e., through any parent, subsidiary or affiliate, or third party) during the Term or within an eighteen (18) month period following the expiration or sooner termination of this Agreement. Should either Party hire an employee, contractor, or subcontractor of the other Party during or within 18 months of the expiration or sooner termination of this Agreement, the hiring Party shall pay to the other Party $75,000, per employee, contractor, or subcontractor, as liquidated damages (and not a penalty), representing a reasonable estimate of the actual costs for personnel replacement. Both Parties acknowledge and agree that the foregoing liquidated damages are not subject to Section 12 above on Limitations on Liability & Cap on Damage.
18. Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred by either Party without the prior written consent of the other Party, whose consent shall not be unreasonably withheld; provided, however, that designDATA may transfer or assign all or part of its performance obligations under this Agreement to an affiliate or subsidiary entity within the Doyon, Limited family of companies, without consent of Client.
19. Severability. Should any term or provision of this Agreement, or any portion thereof, be deemed invalid or unenforceable by a government agency or court of competent jurisdiction, such invalidity or unenforceability shall not affect the enforceability of the remaining portions of this Agreement, which shall remain valid in accordance with its terms.
20. Notice. All notices and other communications that are required or may be given under this Agreement shall be in writing and personally delivered, or sent electronically by e-mail with confirming read receipt or original reply message which shall not be unreasonably withheld or delayed, or sent via certified mail, return receipt requested, postage prepaid, addressed to the authorized representative of each Party identified in the applicable SOW(s).
21. Choice of Law/Venue. This Agreement shall be governed by the Laws of the State of Maryland, excepting only its choice of law provisions. Jurisdiction and venue for any action arising out of or related to this Agreement shall be the Circuit Court for Montgomery County, located in Rockville, Maryland, or the federal District Court for the District of Maryland, Southern Division, located in Greenbelt, Maryland.
22. Amendment. Any changes or additions to this Agreement shall made in writing and signed by authorized representatives of each Party identified in the applicable SOW (electronic documents such as Adobe PDF, with electronic signatures, such as DocuSign, are acceptable). Anything in this Agreement to the contrary notwithstanding, If Client pays or continues to pay, for the Services that are the subject of an amended or new SOW, without sending written notice of objection to DesignDATA within thirty (30) days after confirmed receipt of a copy of the amended or new SOW, the amended or new SOW shall be deemed accepted by Client and become part of this Agreement, regardless of whether such amended or new SOW has been signed by Client.
23. Rules of Interpretation and Construction. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. Both Parties acknowledge and agree that they each have had the opportunity to review this Agreement with legal, tax, and financial counsel of their choice, at their own expense, so any rule of construction that a contract be construed against the drafter shall not apply.
24. Entire Agreement. This Agreement, together with each separate and applicable SOW or Order/Quote is fully integrated and constitutes the entire agreement and final written expression of the Parties, and supersedes all prior or contemporaneous statements, quotes, estimates, promises, representations, or agreements, of any kind or nature, between the Parties made in written, oral, electronic or any other format, with respect to the subject matter of each such SOW or Order/Quote.
When used in this Agreement, the following terms shall have the meaning specified or defined below:
- “After Hours” means any time Services are performed by designDATA at Client’s request, outside of regular Hours of Operation or on Holidays.
- “After Hours Rates” apply to Client requests for Services, not otherwise included in Managed Services or Project Consulting Services, to be performed outside of designDATA regular Hours of Operation or on Holidays. After Hours Rates are billed at a minimum of two (2) hours.
- “Apple Enterprise Operations Team” means the designDATA team that provides end user support plan for users of MacOS devices.
- “Application(s)” means software programs that are designed to perform specific functions on Client systems for end users.
- “Project Consulting Services” means general IT or Application assistance not otherwise included in another SOW, made in a written request by Client, from time to time, that designDATA elects to perform. Project Consulting Services actually performed by designDATA will be billed at Contract Rates.
- “Backup Verification” means a combination of Services performed by designDATA to manually check that scheduled backup jobs have been completed successfully and that monitoring alerts are generated when a backup job enters an error state.
- “Best Efforts” means commercially reasonable efforts made by designDATA in good faith, but with no guarantee or warranty of results.
- “Claims” means any and all demands, actions, suits, liabilities, claims, penalties, judgments, losses, damages, costs, interest, or fees, of any kind or nature, including, without limitation, legal costs and attorneys’ fees.
- “Confidential Information” means any of the following in the ownership, custody, or control of a Party: business or financial information pertaining to the Party’s operations, personally identifying information of the Party’s customers or employees, the Party’s customer lists, and/or any other sensitive documents, files, data, information or records, in any format or media, that if disclosed would result in a business, competitive or reputational disadvantage to such Party, including without limitation, personal identifying information of Client’s employees and/or customers, bank or financial account numbers, credit card and credit report information, account pin codes, passwords or other security credentials, personal identifying health care information, social security or taxpayer ID numbers, and the like. Confidential Information shall not include information that (i) is or becomes part of the public domain through no act or omission of either Party; (ii) was in lawful possession of a receiving Party prior to disclosure by the other Party and had not been obtained by the receiving Party directly or indirectly from the disclosing Party; (iii) is lawfully disclosed by a Third Party without restriction on disclosure; or (iv) is independently developed by either Party without use of or reference to the other Party’s Confidential Information.
- “Contract Rates” means on a time and material basis at designDATA’s then-current rates. Contract Rates are billed in minimum increments of one quarter (0.25) hour.
- “Designated Systems” or “Designated Applications” means the server hardware, virtual servers, workstations and laptop hardware, operating system(s), desktop software programs, firewalls, switches, wireless access points, battery backup units, power distribution units, temperature and environmental sensors, and other specific computer equipment mentioned in this Agreement and related items owned by Client or designDATA; or the software Applications (running in the cloud or on-premises) that are included in Managed Services. Designated Systems or Designated Applications may be subject to additional Client requests for Services and/or Emergency Services, not included in the Managed Services, depending on the circumstances.
- “Electronic Threats & Hacking” means data loss, exposure or corruption from power outages, equipment failures, software failures, viruses, malware, phishing or scamming, spam, hacking, ransomware, spyware, Trojan horses, worms, or the like not caused by the intentional misconduct of a Party.
- “Emergency” means a Client-declared emergency where designDATA is directed by the Client to provide responsive Services immediately.
- “Emergency Rates” means designDATA’s then-current Emergency Rates for Services not otherwise covered in another SOW. Emergency Rates will be subject to a minimum charge of two (2) hours.
- “Expenses” means Client authorized out-of-pocket expenses incurred to perform Services or Emergency Services, including, without limitation, Travel Expenses, long-distance phone charges, expedited shipping charges, and other relevant expenses.
- “Go-Live Date” means the date when all prerequisites agreed upon by the Parties have been accomplished and the delivery of the Services described in any particular Exhibit actually commences.
- “Hardware-as-a-Service” or “HaaS” means hardware assets, owned by designDATA and provided for customer’s use during the Term of the relevant as part of the Services.
- “Hardware Maintenance” means work performed by designDATA to repair malfunctioning Client equipment covered under the applicable SOW.
- “Holiday(s)” means the following U.S. holidays: New Year’s Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, U.S. Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day, the Friday following Thanksgiving, Christmas Eve afternoon, and Christmas Day. If a Holiday falls on a Saturday, it will be observed on the Friday before; if a Holiday falls on a Sunday, it will be observed on the Monday following. Services not otherwise included in Managed Services or Project Consulting Services, which are performed on Holidays, are billed at Emergency rates.
- “Hours of Operation” unless otherwise specified in a SOW, Hours of Operation means from 7 a.m. – 7 p.m. (Eastern Time) Monday through Friday, except for Holidays.
- “Management of Microsoft Azure and AWS Platform” means the daily operations performed by designDATA inclusive of moves, adds, and changes within services in Microsoft Azure and/or Amazon Web Services that designDATA (or others) have previously configured for the Client. This management also includes licensing reviews and consulting on those services.
- “Monthly Recurring Services” means those Services selected by Client in the SOW that are billed to and paid by Client on a flat rate basis, each month.
- “Network Administration” means the work designDATA performs for maintenance and upkeep of manufacturer-supported versions of wired switching, wireless networks (WLAN), and firewall devices, inclusive of periodic firmware and software Updates and configuration backups.
- “Onsite Escalation” means a determination by designDATA to dispatch a Service Desk engineer to the Client’s office or worksite to resolve a problem that cannot be resolved efficiently via remote support.
- “Prescheduled Support Visits” means designDATA personnel who are prescheduled for half (4 hours) or full (8 hours) business day support for Client’s exclusive use. Visits may occur remotely or at the Client’s onsite location, depending on the support needed. Remote visits may be used in lieu of typical onsite visits when conditions warrant remote work. Prescheduled Support Visits may not be changed or rescheduled if canceled by the Client.
- “P1 Emergency Response” means a Client infrastructure or systems outage affecting the majority of staff. DesignDATA will begin restoration efforts within a period not to exceed four (4) hours from issue discovery.
- “Priority 1” means those Client servers and Services determined by mutual agreement between designDATA and Client, for which designDATA will provide Proactive Monitoring and issue resolution twenty-four (24) hours a day, seven (7) days a week, 365 days a year.
- “Priority 2” means those Client servers and Services determined by mutual agreement between designDATA and Client, for which designDATA will provide Proactive Monitoring and issue resolution only during business days from 7 a.m. – 7 p.m.
- “Priority 3” means those Client servers and Services determined by mutual agreement between designDATA and Client, for which designDATA will provide Proactive Monitoring and RMM tools to properly patch Client’s Designated System. No other Services, including issue resolution, will be performed for the portion of Client’s Designated Systems that are determined to be Priority.
- “Project Consulting Services” means Services for a specifically identified project, requested by an authorized representative of Client that designDATA agrees to perform. Project Consulting Services shall be documented in writing in the SOW and approved, in advance, by an authorized representative of each Party. Project Consulting Services will be billed at Contract Rates or Fixed Fee as set forth in the SOW.
- “Response” means that designDATA shall make its best effort to repair or resolve the problem within the shortest period of time reasonably possible under the circumstances. While most repairs or problems are resolved within eight (8) business hours of Service call origination, there are situations where the resolution depends on input or corrections from a Third Party Vendor, which could cause a delay in repair or problem resolution.
- “Remote Monitoring and Management” or “RMM” means the software toolset deployed by designDATA as part of the Services to Client’s Designated System, leveraged by designDATA engineers to remotely access, administer, and monitor Client’s network and systems.
- “Server Operating System” is defined as the Microsoft Windows Server and subversion currently in use in the Client’s Designated Systems.
- “Server Support” means the work performed by designDATA for configuration, diagnosis, and problem mitigation on physical or virtual servers running Microsoft® and Linux-based operating systems.
- “Service Provider Licensing Agreement” or “SPLA” means one or more software license(s) supplied by design DATA for use by Client for the duration of the Agreement.
- “Statement of Work” or “SOW” means the document, attached as an Exhibit or incorporated by reference into the Agreement, which summarizes and describes the requirements for designDATA to successfully provide Services to Client. The SOW is used as a basis for day-to-day decisions, such as the Project-specific activities, deliverables, and timelines for the performance of the Services and Client payment obligations.
- “Switch, Firewall, and Wireless Monitoring” means designDATA is monitoring the availability of agreed-upon devices in the Client Designated Systems on a twenty-four (24) hours per day, seven (7) days per week, basis.
- “Systems Administration” means the work performed by designDATA for the maintenance and upkeep of manufacturer-supported versions of Microsoft Windows Server, Azure Server, VMWare hypervisor systems, and hardware storage systems, inclusive of management of data backup services, patching and Updates, and management of Active Directory to the extent of keeping these services available for Client use.
- “Third Party” means any person not a Party to this Agreement.
- “Third Party Provider” means any Third Party engaged by designDATA to provide some or all of the contracted Services.
- “Travel Expenses” means Client authorized out-of-pocket travel expenses incurred in the course of performing Services, including, without limitation, airfare, rental car, tolls, parking, lodging, meals, and other relevant expenses. The Federal per diem schedule rate will be billed for food and incidentals when designDATA personnel travel to and from Client worksites to perform Services. designDATA may charge Client for mileage at the then-current Federal mileage reimbursable rate for any travel required by designDATA personnel that is more than forty-five (45) miles from an established designDATA office. Travel Time is billed and paid at standard hourly rates except where worksite Services actually performed exceed four (4) hours in duration, then Travel Time shall be billed to, and paid by Client, at one-half of standard hourly rates. When air travel is required, Travel Time begins one hour before scheduled flight departure and ends when arriving at the Client worksite or hotel. Client is not charged for Travel Time within 10 miles of a designated designDATA office.
- “12/5 Service Desk” means remote end-user technology support of Client-provided technologies, provided by designDATA Help Desk staff via telephone or other electronic means, occurring between 7 a.m. – 7 p.m. Eastern Time, business weekdays, excluding Holidays.
- “24/7 Service Desk” means remote end-user technology support of Client-provided technologies, provided by designDATA Service Desk staff via telephone or other electronic means, occurring twenty-four (24) hours a day, 365 days a year.
- “Updates” means designDATA or Third Party Provider testing and installation of patches, service packs, and fixes released by the software manufacturer that applies to the current software version in use on the Client’s Designated System.
- “Vendor Management” means designDATA’s engagement and coordination with Customer’s other vendors to troubleshoot a technology issue or support a project. These vendors typically include software license providers, printer/copier, audio/visual, telephony, and database application vendors.