NetTech LLC
Master Services Agreement

Legal

The following terms and conditions govern the relationship between New Charter Technologies, LLC (“us,” “our,” “we,” or “Provider”) and you and limit our liability for any services or products that we provide to you. Please read these terms carefully and keep a copy for your records.

1. SCOPE; SERVICES

1. Scope. This master services agreement, as it may be varied, modified, supplemented and restated from time to time by us in our reasonable discretion (this “Agreement”), governs all services that we perform or provide to you, as well as any licenses, services, or products that we sell or re-sell to you (collectively, the “Services”).
2. Statements of Work. The Services are not described in this Agreement; instead, from time to time, we will provide you with a quote, proposal, service order, statement of work, or similar electronic document (“SOW”) proposing the Services that we can provide to you, which SOW will incorporate the terms of this Agreement by reference. By accepting the SOW, you also agree to the terms of this Agreement. If you do not agree to the terms of this Agreement, then you should not accept the SOW. This Agreement, as in effect from time to time, shall govern all outstanding SOWs regardless of when you and we entered into them.
3. Conflict. If there is a specific, material difference or a direct conflict between the language in an SOW and the language in this Agreement, then the language of the SOW will control, unless the parties mutually agree otherwise in writing; provided that all matters involving warranties or limitations of liability relating to the Services, or the termination of this Agreement, shall be governed by this Agreement.

2. GENERAL

1. For the purposes of this Agreement, “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 us pursuant to an SOW. To avoid a delay or negative impact on our provision of the Services, during the term of the Services with respect to each SOW, you agree to refrain from modifying or moving the Environment, or installing software on the Environment, unless we are notified and expressly authorize, in advance, of the contemplated changes.  In all situations (including those where we are co-managing an Environment with your internal IT department), we will not be liable or responsible for changes to the Environment or issues that arises from those changes that are not authorized by us, it being understood that any Services requested by you in connection with any such changes or issues arising therefrom will be billed to you at our then-current hourly rates.
2. Requirements.  At all times, all components of the Environment must be genuine and licensed—including all hardware, software, etc., and you agree to provide us with proof of such licensing upon our request.  You are responsible for maintaining Environment, systems, and infrastructure in a condition that meets the minimum standards required our products and Services to function as intended. These standards may include, but are not limited to, current and supported operating systems, up-to-date security patches, licensed software, reliable internet connectivity, functional hardware, and compliance with applicable cybersecurity best practices.  If we require certain minimum hardware or software requirements in an SOW (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements as an ongoing requirement of us providing the Services to you.  We are not responsible for performance issues, Service interruptions, or security incidents arising from your failure to meet Minimum Requirements.  If your Environment does not meet the required standards, we may (i) suspend affected Services until compliance is achieved, (ii) charge additional fees for remediation work, or (iii) terminate the affected SOW upon written notice.
3. Updates.  Patches and updates to hardware and software (“Updates”) may be offered to you under an SOW.  Updates are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If Updates are explicitly provided to you under an SOW, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be liable or responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, and (iii) we reserve the right, but not the obligation, to refrain from installing an Update until we have determined, in our 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.
4. Third Party Support.  If we are providing hardware or software support to you under an SOW and, under those circumstances, a hardware or software issue requires vendor or OEM support, then you agree that we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs involved in that process.  If the fees or costs are anticipated in advance or exceed $500, we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require us to act otherwise.  Recognizing that you may be required to limit access to your Environment only to those third parties specifically approved by you, we will not provide access to your Environment to any vendor or OEM to troubleshoot your Environment without your prior approval.  If for expediency purposes, we are unable to obtain your prior approval, we may (at our reasonable discretion) engage the vendor or OEM providing support in order to achieve the best outcome for you without obtaining your permission; provided, however, that we will always require the vendor or OEM to sign a confidentiality agreement that is at least as restrictive as the confidentiality requirements in this Agreement.
5. Advice; Instructions.  From time to time, we may provide you with specific advice and directions related to the Services or the maintenance or administration of the Environment (“Advice”).  For example, our Advice may include increasing server or hard drive capacity, increasing CPU power, replacing obsolete equipment, or refraining from engaging in acts that disrupt the Environment or that make the Environment less secure. You are strongly advised to promptly follow our Advice which, depending on the situation, may require you to make additional purchases or investments in the Environment at your sole cost. We are not responsible for any problems or issues (including but not limited to downtime or security-related issues) caused by your failure to promptly follow our Advice. If, in our reasonable discretion, your failure to follow or implement our Advice renders part or all of the Services economically or technically unreasonable to provide, then we may terminate the applicable SOW for cause by providing notice of termination to you. Unless specifically and expressly stated in an SOW, any services required to remediate issues caused by your failure to follow our Advice, or your unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements, are out-of-scope.
6. Prioritization.  We will perform the Services in a manner that we deem reasonable and appropriate to achieve the goals under an SOW.  If we provide you with exact dates or precise milestones under an SOW, then we will use commercially reasonable efforts to meet or exceed those dates/milestones.
7. Authorized Contact(s).  We will be entitled to rely on any directions or consent provided by your personnel or representatives who are authorized, pursuant to the applicable SOW, to provide such directions or consent (“Authorized Contacts”).  If no Authorized Contact is identified in an applicable SOW or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the SOW, and/or (ii) who is generally designated by you during the course of our relationship to provide us with direction or guidance.  We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of a change of status of the Authorized Contact.  If your change of the Authorized Contact is provided to us in writing (physical document or by email, with proof of confirmed delivery), then the change will be implemented within two (2) business days after the first business day on which we receive your change notice.  If your change notice is provided to us in person or by telephone (live calls only), the change will be implemented on the same business day in which the conversation takes place.  You agree not use a ticketing system or help desk request to notify us about the change of an Authorized Contact; similarly, you agree not leave a recorded message for us informing us of a change to your Authorized Contact. We reserve the right to delay the Services until we can confirm the Authorized Contact’s authority within your organization.

3. FEES; PAYMENT

1. Fees.  You agree to pay the fees, costs, and expenses set forth in each SOW.   You are responsible for sales tax and any other taxes or governmental fees associated with the Services. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption. You are also responsible for all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes).
2. Schedule.  Unless otherwise stated in an SOW, all undisputed fees will be due and payable in advance of the provision of the Services.  If applicable, recurring payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided, or if applicable, your designated credit card will be charged on the first business day of the month in which the Services are to be provided.
3. Nonpayment.  Fees that remain unpaid for more than fifteen (15) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law.  We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees is not timely received by us, and monthly or recurring charges shall continue to accrue during any period of suspension.   Notice of disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on which you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter.  A re-connect fee of up to five percent (5%) may be charged to you if we suspend the Services due to your nonpayment.  Time is of the essence in the performance of all payment obligations by you.
4. Product Pricing & Availability.  Pricing, availability, lead times, and product specifications are subject to change without notice due to supplier pricing, market conditions, currency fluctuations, tariffs, transportation costs, or other external factors beyond our control.  If such changes materially impact the cost or timing of delivery for any products or services quoted or ordered under this Agreement or any applicable SOW, we reserve the right to adjust pricing or delivery terms accordingly, upon written notice to you. In such cases, the parties will work in good faith to agree on revised terms. If the parties cannot reach agreement, either party may cancel the affected order without liability for such cancellation.
5. Price Adjustments.  Except as otherwise specified in an applicable SOW or order, pricing for recurring Services may be subject to adjustment from time to time to reflect changes in costs, market conditions, supplier pricing, or other factors impacting Service delivery.  We may increase pricing for recurring or subscription-based Services (i) on an annual basis, (ii) upon renewal of the applicable term, or (iii) in accordance with any adjustment schedule or formula set forth in the applicable SOW or order.  Unless otherwise agreed, we will provide you with at least thirty (30) days’ prior written notice of any price increase. If you do not agree to the increase, you may terminate the affected service or SOW upon written notice prior to the effective date of the increase. Continued use of the Services after the effective date constitutes acceptance of the revised pricing.

4. ACCESS

1. You hereby grant to us and our designated third party vendors the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment as necessary in our reasonable judgment to enable us or our vendors, as applicable, to provide the Services.  Depending on the Service, we may be required to install one or more software agents into the Environment through which such access may be enabled. It is your responsibility to secure, at your 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 us or our vendors to provide Services to the Environment and, if applicable, at your designated premises, both physically and virtually.
2. You shall grant Provider, its employees, agents, subcontractors, and authorized representatives with timely and reasonable access to your facilities, systems, equipment, and personnel as necessary for Provider to perform the Services.  Such access may include physical entry to your physical locations, remote system access, and any other cooperation reasonably required for installation, maintenance, configuration, or support activities. You shall ensure that Provider’s personnel are provided with safe and suitable working conditions consistent with applicable health, safety, and security laws and your internal site policies.  Provider will comply with all reasonable security, access, and confidentiality requirements provided in writing by you prior to commencement of work. Provider shall not be responsible for any delay, failure, or additional cost arising from your failure to provide required access, information, or cooperation.  We 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 of our personnel, or that would require extraordinary or non-industry standard efforts to achieve.

5. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY

1. Hardware / Software Purchased Through Provider.  All hardware, software, peripherals, or accessories purchased from a third party provider or reseller through Provider (“Third Party Products”) are nonrefundable once the Third Party Product is obtained from Provider’s third party provider or reseller.  If you require a refund, then the third party provider’s or reseller’s return policies shall apply, which may vary by product.  We do not guarantee that purchased Third Party Products will be refundable, returnable, exchangeable, or that re-stocking fees can or will be avoided.  Certain products, including but not limited to opened items, software, license keys, configured-to-order (“CTO”) or custom-built equipment, and special-order products, may not be eligible for return.  Where returns are permitted, they must be requested within thirty (30) days from the date of invoice and are subject to the manufacturer’s approval. Returned products must be in their original packaging and condition, accompanied by all accessories and documentation. You will be responsible for the payment of all re-stocking or return-related fees charged by the third party provider or reseller. We 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 you, but we will have no liability whatsoever for the quality, functionality or operability of any Third Party Products, and we 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 PROVIDER AND YOU (INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, AND THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).
2. Liability Limitations.   You acknowledge and agree that the limitations of liability set forth in this Section are a material inducement for Provider to enter into this Agreement and any SOW, and that absent such limitations, Provider would not do so.  You acknowledge and agree that Provider would not enter into this Agreement or any SOW unless Provider could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees for Services due and owing to Provider), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, 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 this Agreement or any SOW, even if a party has been advised of the possibility of such damages.  However, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the confidentiality and non-solicitation provisions of this Agreement shall not be limited by the foregoing limitation.  Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees actually paid by you (excluding hard costs for licenses, hardware, etc.) to 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 cause of action accrued, and shall exclude any third party fees, hardware, licenses, or other pass-through costs.  The foregoing limitations shall not apply to: (a) the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence; and (b) any Claims arising from your acts or omissions, including your failure to follow Provider’s Advice, use of third-party products or services not under Provider’s control, Updates, or failure to implement security measures.  Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, gross negligence, or to the extent that the Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims.

7. TERM; TERMINATION

1. Term.  This Agreement begins on the earliest date on which you accept an SOW and continues until terminated as described in this Agreement.  Each SOW will have its own term and will be terminated only as provided herein, unless otherwise expressly stated in the SOW.  The termination of Services under one SOW shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other SOW between the parties. Be aware that an SOW may provide for auto-renewal; please review your documents carefully.
2. Termination without Cause.  Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, Services under an SOW are in progress.  In addition, no party will terminate an SOW without cause prior to the SOW’s natural expiration date.  Notwithstanding the foregoing, if Provider decides to cease providing a service to all of its customers generally, then Provider may terminate an applicable SOW (or the applicable portion of an SOW) without cause by providing no less than thirty (30) days’ prior written notice to you.  If you terminate the Services under an SOW without cause and without Provider’s prior written consent, then you will be responsible for paying the termination fee described in the “Termination for Cause” section, below.  If no Services under an SOW are in progress, then either party may terminate this Agreement without cause by providing the other party with five (5) days’ prior written notice.
3. Termination for Cause.  In the event that one party (a “Defaulting Party”) commits a material breach under an SOW or under this Agreement, the other party (the “non-Defaulting Party”) will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (or ten (10) days in the case of non-payment by you) following receipt of written notice of breach from the non-Defaulting Party.  If Provider terminates this Agreement or any SOW For Cause, or if you terminate any Services under an SOW without cause prior to such SOW’s expiration date, then Provider shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to Provider had this Agreement or SOW (as applicable) remained in full effect, calculated using the fees and costs in effect as of the date of termination (“Termination Fee”).  If you terminate this Agreement or an SOW For Cause, then you will be responsible for paying only for those Services that were delivered properly and accepted by you up to the effective date of termination.
4. Client Activity as a Basis for Termination.  In the event that you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable for Provider to provide the Services to you, then in addition to Provider’s other rights under this Agreement, Provider will have the right upon providing you with ten (10) days’ prior written notice, to terminate this Agreement or the applicable SOW For Cause or, at our sole discretion and if applicable, amend the applicable SOW.
5. Consent.  You and we may mutually consent, in writing, to terminate an SOW or this Agreement at any time.
6. Provider Equipment / Software Removal.  Upon the expiration or termination of the applicable SOW for any reason, your license to use any Provider-owned equipment, software, hardware, or other tangible items provided by Provider to you on a loan, rental, lease, or temporary-use basis (collectively, “Provider Equipment”) shall immediately terminate without notice, and you shall, at your sole expense and within five (5) business days, return all Provider Equipment to Provider in the same condition as originally delivered, reasonable wear and tear excepted. Failure to return Provider Equipment within this time frame may result in additional fees, including the full replacement cost and associated recovery expenses.  If you fail to return any of the Provider Equipment, or Provider Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Provider-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items. You are responsible for any loss of or damage to Provider Equipment while in your possession or control. You are granted a limited, non-transferable, non-sublicensable, revocable license to use the Provider Equipment solely during the term of the applicable SOW and solely in connection with the Services.  Provider Equipment shall always remain the sole and exclusive property of Provider. No title, ownership, or other proprietary rights are transferred to you by virtue of possession or use.  You shall (i) use the Provider Equipment only for its intended purpose and in accordance with our instructions, (ii) maintain the Provider Equipment in good condition, reasonable wear and tear excepted, (iii) not modify, move, pledge, sell, transfer, or otherwise encumber the Provider Equipment without our prior written consent, and (iv) not circumvent, alter, reverse engineer, copy, remove, or other modify the Provider Equipment by you or any third party without our prior written consent.  Certain Services may require the installation of software agents in the Environment (“Software Agents”).  You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so in writing.  The obligations in this section shall survive the expiration or termination of the Agreement and any SOW.
7. Repayment of Discounted Fees.  If you are provided with a price discount or fee waiver under an SOW based on your commitment to retain our Services for a minimum term and if, under that scenario, we terminate the SOW For Cause or you terminate the SOW without cause, then in addition to any other remedy available to us, you agree to pay us the amount of the fee waiver or, if applicable, the difference between the discounted rates and the non-discounted rates under that SOW, calculated from the effective date of the SOW through the date of termination.
8. Transition; Deletion of Data.  In the event that you request our assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Provider providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we 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 conversions of data are transition services, and are subject to the preceding requirements. You also understand and agree that any software configurations that we custom create or program for you are our proprietary information and shall not be disclosed to you under any circumstances. Unless otherwise expressly stated in an SOW, we will have no obligation to store or maintain any of your data in our possession or control beyond ten (10) calendar days following the termination of this Agreement or the applicable SOW.  We will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, our deletion of your data beyond the time frames described in this section.

8. RESPONSE; REPORTING

1. Response.  We will respond to any notification received by us of any error, outage, alarm, or alert pertaining to the Environment, in accordance with priority table(s) in the applicable SOW.  In no event will we be responsible for delays in our response or our provision of Services during (i) those periods of time covered under Scheduled Downtime (defined below) or the Transition Exception (defined below), or (ii) periods of delay caused by Client-Side Downtime (defined below), Vendor-Side Downtime (defined below) or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a force majeure event.
   1. Scheduled Downtime.  For the purposes of this Agreement, “Scheduled Downtime” will mean those hours, as determined by us but which will not occur between the hours of 8:00 AM and 5:00 PM Eastern Time, Monday through Friday without your authorization or unless exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to the Environment.  We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
   2. Client-Side Downtime.  We 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 your actions or omissions (“Client-Side Downtime”).
   3. Vendor-Side Downtime.  We 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 third party service providers, third party licensors, or “upstream” service or product vendors (“Vendor-Side Downtime”).
2. Transition Exception.  You acknowledge and agree that for the first forty-five (45) days following the commencement date of Services under an SOW, as well as any period of time during which we are performing off-boarding-related services (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), the response time commitments described in this Agreement or any applicable SOW will not apply to us, it being understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

9. CONFIDENTIALITY

1. Definitions.  For the purposes of this Agreement, “Confidential Information” means any and all non-public information provided by one party (a “Discloser”) to the other party (a “Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information.  Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient without reference to the Confidential Information of the Discloser, or (iii) is or was lawfully and independently provided to the Recipient from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
2. Use.  The Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Discloser in writing, or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any legal process, law, rule, or industry-related regulation.  If either party is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then the Recipient will ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 9.
3. Due Care.  The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
4. Compelled Disclosure.  If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, the Recipient will immediately notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or other appropriate remedy.  The Recipient will use its best efforts, as directed by the Discloser and at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order.  Failing the entry of a protective order, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised by its legal counsel that the Recipient is legally compelled to disclose.
5. Additional NDA.  In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s confidential information (such as, for example, a business associate agreement).  In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information.

10. ADDITIONAL TERMS; THIRD PARTY SERVICES

1. EULAs.  Portions of the Services may require you to accept the terms of one or more third party end user license agreements (“EULAs”).  If the acceptance of a EULA is required in order to provide the Services to you, then you hereby grant us permission to accept the EULA on your behalf.  EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement.  You agree to be bound by the terms of such EULAs and will look only to the applicable third party provider for the enforcement of any of the warranties or guarantees under such EULAs. If, while providing the Services, we are required to comply with a third-party EULA and the third party EULA is modified or amended, we reserve the right to modify or amend any applicable SOW in our reasonable discretion to ensure our continued compliance with the terms of the third party EULA.
2. Third Party Services. 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 Providers”). Third Party Providers may provide services such as data hosting services, help desk services, malware detection services, domain registration services, and data backup/recovery services (each, a “Third Party Service”).  Not all Third Party Services in a quote or SOW will be expressly identified as being provided by a Third Party Vendor, and at all times we reserve the right to utilize the services of any Third Party Provider or to change Third Party Providers in our sole discretion as long as the change does not materially diminish the Services to be provided to you under the quote or SOW. Please note: You understand and agree that Third Party Providers are not our contractors, subcontractors, or otherwise under our managerial or operational control. While we will endeavor to facilitate a workaround for the failure of a Third Party Service, we will not be responsible to you, and will be held harmless by you, for any failure of any Third Party Service as well as the failure of any Third Party Provider to provide such services to Provider or to you.
3. Data Loss. Under no circumstances will we be responsible for any data lost, corrupted, or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our 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 an SOW, we do 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.
4. BYOD.  You hereby represent and warrant that we are 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 you. Unless otherwise stated in an SOW, Devices will not receive or benefit from the Services while the devices are detached from, or unconnected to, the Environment.  You are strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”).  We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.
5. Authorization to Use AI Tools.  You expressly authorize the Provider to use, deploy, and integrate artificial intelligence (“AI”) technologies—including third-party AI platforms, commercially available AI services, and AI systems internally developed, trained, or operated by Provider—for any purposes reasonably related to the provision, maintenance, enhancement, or support of the Services. Such purposes may include, without limitation, processing, analyzing, transforming, summarizing, detecting patterns in, or otherwise handling data submitted by you through email, ticketing systems, uploads, or any other means (“Client Data”).
   1. Processing of Personal Data.  To the extent Client Data includes Personal Data, you acknowledge that such Personal Data may be processed by AI tools as part of Provider’s performance of the Services. Provider will implement commercially reasonable technical and organizational measures designed to protect Personal Data processed through AI tools; however, you acknowledge that no system or technology (including AI systems) can be guaranteed to be entirely secure or error-free.  “Personal Data” means any information relating to an identified or identifiable natural person that is provided by you to Provider or otherwise made available to Provider by or on behalf of you in connection with the Services. Personal Data includes only such information that you elect to submit to Provider and does not include data that has been anonymized or de-identified in accordance with applicable law.
   2. Use of Third-Party AI Providers.  Provider may, in its sole discretion, utilize any third-party AI tools or services it deems appropriate. Provider will make reasonable efforts to ensure such third-party providers are bound by terms requiring them to implement industry-standard data-protection and security measures. You acknowledge that Provider does not control and is not responsible for the acts or omissions of independent third-party AI service providers.
   3. Model Training and Improvement.  You acknowledge and agree that Client Data may be used by Provider to train, refine, or improve its internal AI tools, algorithms, or service-delivery processes, provided that such use does not involve disclosing Client-identifiable information to third parties in a manner that would permit the third party to identify you. For third-party AI tools, model-training limitations will be governed by the third party’s terms of service unless you and Provider expressly agree otherwise in writing.
   4. Data Minimization; No Warranty on Anonymization.  While Provider may use data-minimization techniques (including anonymization or pseudonymization) at its discretion, Provider does not warrant that any such techniques will irreversibly remove identifiers or prevent all forms of re-identification. You assume all responsibility for ensuring that you provide only the Personal Data necessary for the Services.
   5. Confidentiality and Security.  Provider shall maintain commercially reasonable administrative, technical, and physical safeguards to protect Client Data processed by AI tools. Except as explicitly set forth in this clause, Provider makes no additional representations or warranties regarding the security, confidentiality, or behavior of AI tools, including third-party tools.
   6. Your Responsibilities.  You are solely responsible for ensuring the legality, accuracy, completeness, and appropriateness of all Client Data submitted for processing. You shall not provide Provider with any Personal Data or sensitive information unless such disclosure is strictly necessary for Provider to perform the Services.
   7. Transparency.  Upon written request and subject to reasonable confidentiality protections, Provider may, at its discretion, provide summary information describing categories of AI tools used in connection with the Services. You acknowledge that Provider has no obligation to disclose proprietary details of its internal AI systems, models, or processes.

11. OWNERSHIP

Each party retains all rights, title, and interest in and to its pre-existing and independently developed intellectual property (“Intellectual Property”), and nothing in this Agreement or any SOW transfers or licenses any such rights unless expressly stated.

You acknowledge that any software, code, tools, algorithms, processes, or other materials developed or provided by us during the Services are our sole property, unless otherwise agreed in writing. We grant you a limited, non-transferable license to use such deliverables solely for your internal business purposes, subject to the terms of this Agreement and the applicable SOW.

Any third-party software provided by us is licensed, not sold, and may only be used in accordance with this Agreement, the SOW, and any applicable EULA. You may not modify, reverse engineer, or sublicense such software.  All third-party software is provided “as is,” with no warranties, express or implied, including merchantability, fitness for a particular purpose, or non-infringement.  This section survives termination of the Agreement.

12. ARBITRATION

Except for collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be resolved by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered by the American Arbitration Association (the “AAA”) according to the AAA’s then existing Commercial Arbitration Rules (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, AAA shall select the arbitrator.  The arbitration shall take place at a location within ten (10) miles of our office unless we agree to a different venue. 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. In fashioning an award, the arbitrator is empowered to award only actual, direct damages, if any. The arbitrator HAS no authority to award punitive, special and/or exemplary damages; indirect, incidental and/or consequential damages (including, without limitation, lost profits); and/or other damages not measured by the prevailing party’s actual direct damages, except as may be required by statute. 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.  Notwithstanding the foregoing, a party may seek equitable relief, including injunctive relief, in a court of competent jurisdiction (subject to Section 13(q)) without the necessity of proof of actual damages or the posting of a bond or other security.

YOU AND PROVIDER AGREE THAT THIS AGREEMENT, INCLUDING ALL TERMS, CONDITIONS AND ADDENDA, DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS, EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL OR GENERAL INJUNCTIVE RELIEF THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT AND NOT THE ARBITRATOR.

13. MISCELLANEOUS

1. Compliance.  Unless otherwise expressly stated in an SOW, the Services are not intended, and will not be used, to bring you into full regulatory compliance with any rule, regulation, or requirement that may be applicable to your business or operations.  Depending on the Services provided, the Services may aid your efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.
2. Disclosure.  You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof) to, any government or regulatory authority.  You agree to promptly notify us if you become subject to any of the foregoing which, in our sole discretion, may require a modification to the scope and/or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law (such as HIPAA), you agree to: (i) identify to us any data or information subject to protection under that law prior to providing such information to us or granting us access to it; and (ii) ensure that all necessary consents, approvals, and authorizations required to disclose or provide access to such data or information have been properly obtained in accordance with applicable law.
3. Virtual Security.  You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment.  We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined, or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in an SOW, the recovery of Impacted Data is out-of-scope. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario.  Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, you agree to hold us harmless from any costs, expenses, or damages arising from or related to such incidents.
4. Physical Security.  You agree to implement and maintain reasonable physical security for all managed hardware and related devices in your physical possession or control. Such security measures must include (i) physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment, (ii) fire detection and retardant systems, and (iii) 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.
5. Non-Solicitation.  Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any employees or contractors of the other party (or of its affiliates) with whom the Restricted Party worked during the term of this Agreement to discontinue their employment with the other party, or recruit, solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to fifty percent (50%) of the total compensation paid by the other party to the affected employee during the twelve (12) month period immediately preceding the violation. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s (or its affiliates) employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
6. Collections.  If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.
7. Assignment.  Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party.  This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, either party may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of its business, or any other transaction in which ownership of more than fifty percent (50%) of its voting securities are transferred; provided, however, that (i) the assigning party notifies the other party to this Agreement of the assignment, and (ii) the assignee expressly assumes the assignor’s obligations hereunder, in writing.
8. Amendment.  We may amend the terms of this Agreement in our reasonable discretion.  However, any other amendment to an SOW will not be valid or binding upon the parties unless such amendment or modification is originated in writing by Provider, specifically refers to the SOW being amended and is accepted in writing (email or electronic signature is acceptable) by you.
9. Time Limitations.  The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any SOW (except for issues of your nonpayment) must be commenced within six (6) months after the cause of action accrues regardless of the legal theory (including contract, tort, or statute), and if not so commenced, the action is forever barred.  This limitation period is a material and bargained-for term of this Agreement and reflects the parties’ mutual desire for prompt resolution of any disputes.
10. Severability.  If any provision hereof or in any SOW is invalid, illegal or unenforceable, such provision will be ineffective only to the extent of such invalidity, illegality, or unenforceability so that the remainder of that provision and all remaining provisions will be valid and enforceable to the fullest extent permitted by applicable law.
11. Other Terms.  We expressly reject, and shall not be bound by, any terms or conditions contained in or referenced by any purchase order, invoice, memorandum, click-through, website, or other written or electronic communication issued by you, unless such terms are expressly incorporated into a mutually executed SOW or written amendment to this Agreement. Our performance of any Services, delivery of any goods, or acceptance of any payment shall not constitute acceptance of any such terms, and shall not be construed as a waiver, modification, or amendment of this Agreement or any SOW.  Any additional or conflicting terms proposed by you are hereby expressly rejected, and our failure to object to any such terms—whether communicated before, during, or after the provision of Services—shall not be deemed a waiver or acceptance thereof, nor shall it modify the terms of this Agreement or any SOW in any respect.
12. No Waiver.  The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an agreement to waive such terms with respect to any other occurrences.
13. Merger.  This Agreement, together with any and all SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect.  No representation, promise, inducement or statement of intention has been made by either party that is not embodied herein.  We will not be bound by any of our agents’ or employees’ representations, promises or inducements if they are not explicitly set forth in this Agreement or any SOW.  Any document that is not expressly and specifically incorporated into this Agreement or an SOW will act only to provide illustrations or descriptions of Services to be provided and will not modify this Agreement or provide binding contractual language between the parties.  The foregoing sentence shall not apply to any business associate agreement required under HIPAA, which the parties may (if required) enter into after the earliest date on which you accept an SOW.
14. Force Majeure.  Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW (excluding payment obligations owed by you) because of circumstances beyond such party’s reasonable control and not due to its own negligence or willful misconduct.  Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disasters, pandemics, endemics, acts of a public enemy, war, acts of terrorism, riots, sabotage, disputes or differences with workers, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.  The party affected by a Force Majeure Event must promptly notify the other party in writing of the occurrence and use reasonable efforts to mitigate the effects of the delay or failure. The suspension of performance shall be limited to the duration of the Force Majeure Event.
15. Survival.  The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive.
16. Insurance. Provider and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers’ compensation and general liability insurance.  While this Agreement is in effect, we agree to maintain a general liability insurance policy with a limit not less than $1,000,000 per occurrence.  All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days’ written notice has been given to the other party.
17. Governing Law; Venue.  This Agreement, all SOWs, and all Services will be governed by, and construed according to, the laws of the state of New York without regard to its conflicts of law principles that would result in the application of the laws of another jurisdiction.  Except for collections actions, each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts in Manhattan, New York for any claim, suit, action, or proceeding arising out of or relating to this Agreement, any SOW, or the Services to the extent Section 12 does not apply.  Each party waives any objection to such venue, including based on forum non conveniens, lack of personal jurisdiction, or otherwise, and agrees not to challenge the enforceability of this forum selection.
18. No Third Party Beneficiaries.  The Parties have entered into this Agreement and SOW solely for their own benefit.  They intend no third party to be able to rely upon or enforce this Agreement, SOW, or any part of this Agreement or SOW.
19. No Implied Modifications or Interpretations.  It is expressly understood and agreed that no course of dealing, course of performance, usage of trade, industry standard, or prior or contemporaneous practice between the parties shall be used to modify, interpret, supplement, or alter in any way the express terms and conditions of this Agreement or any SOW.
20. Business Day. If a time period set forth in this Agreement expires on a day other than a business day in Hartford, Connecticut, such period will be extended to and through the next succeeding business day in Hartford, Connecticut.
21. Notices; Writing Requirement.  Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email or delivered by hand and shall be deemed to have been given when actually received or delivery is refused.  All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.
22. Independent Contractor.  Provider is and shall remain an independent contractor in all respects. Nothing in this Agreement shall be construed to create any partnership, joint venture, employer-employee, agency, fiduciary, or other relationship between you and Provider.   Neither party shall be deemed an agent or legal representative of the other for any purpose whatsoever, and neither party shall be responsible for the debts, obligations, or liabilities of the other.
23. Subcontractors.  Generally, we do not utilize subcontractors to perform onsite Services; however, should we elect to subcontract a portion of those services, such work will carry the same warranties as provided in this Agreement as if we performed the subcontracted work ourselves.  For the purposes of clarity, you understand and agree that resold services are not considered to be subcontracted services, and providers of Third Party Services are not our subcontractors, agents, or representatives for any purpose under this Agreement or SOW.
24. Data & Service Access. Certain Services may be provided by persons outside of the United States and/or your data may, from time to time, be accessed, viewed, or stored on secure servers located outside of the United States. You agree to promptly notify us if your organization requires us to modify these standard service provisions, acknowledging that such modification may result in additional fees, which could be substantial.
25. Counterparts.  The parties may sign, accept and/or deliver any SOW, this Agreement, or any amendment in any number of counterparts, each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement.  Each party may sign, accept, and/or deliver any SOW, this Agreement, or any amendment by facsimile or other electronic means (e.g., by email, digital signature and/or electronic reproduction of a handwritten signature).