Agreement Between User and Data Defined. LLC.
THE INDIVIDUAL OR ENTITY (“Customer”) EXECUTING ANY ORDER FORM, WORK ORDER, STATEMENT OF WORK OR PROPOSAL (“Order Form”) THAT INCORPORATES THIS MASTER SERVICES AGREEMENT (collectively Order Form and this MASTER SERVICES AGREEMENT, “AGREEMENT”) AGREES THE FOLLOWING TERMS AND CONDITIONS GOVERN ACCESS TO, AND THE PROVISION OF, THE SERVICES BY DATADEFINED, LLC, LLC (“DATA DEFINED”) TO CUSTOMER. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE CUSTOMER EXECUTED AND RETURNED TO DATA DEFINED AN ORDER FORM (“Effective Date”). If at any time you do not agree to all its terms set forth below, or as amended, please immediately discontinue use of any services (defined below). Your use of the Services (defined below) is subject to this Agreement.
1. Definitions. In addition to the words and terms defined elsewhere in this Agreement, the following words and terms as used in this Agreement shall have the following meanings:
- “Computer System” means all the Customer’s leased or owned computer hardware, computer software, hosted solutions, and custom applications used at, or in connection with, any location from which Customer conducts its business.
- “Customer Materials” means all the software, specifications, content, or other Customer-provided materials, including the Computer System.
- “Existing Materials” means any confidential or proprietary materials in which Data Defined or its suppliers have an intellectual property interest and/or proprietary works of authorship, pre-existing or otherwise, that have not been created specifically for Customer, including, without limitation, computer programs, methodologies, templates flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, administrative records, and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge, or data, and any derivatives thereof, which have been originated, developed, or purchased by Data Defined, a parent or affiliate of Data Defined, or by third parties under contract to Data Defined or to a parent or affiliate of Data Defined.
- “Force Majeure Event” means any event which is caused by or a result of a government law or order, action by any governmental authority, judicial or government decree, regulation or other direction not the fault of the impacted Party, communication line failure, 911 system failure, or 911 call inadequate response or failure, power failure and any natural disaster or act of God, war, terrorism (or threats of terrorism), invasion, hostilities, insurrection, riot, the order of any civil or military authority, explosion, fire, flood, earthquake, weather, lockouts, strikes, labor stoppages, or slowdowns or other industrial disturbances, the unavailability of personnel due to injury, sickness, death, or termination of employment, either voluntary or involuntary, or, without limitation, any other cause beyond the impacted Party’s reasonable control.
- “Services” means the services described in any applicable Work Order (as defined below). “Services” may also include any follow-up consultation or other services provided to the Customer by Data Defined, at its discretion, for which no separate written contract has been executed. Unless otherwise agreed by Data Defined, “Services” specifically exclude, without limitation, any repair, replacement, maintenance, adjustment, or modification of the Computer System.
- “Work Product” means tangible and intangible personal property developed or purchased solely for or by Customer pursuant to the terms of this Agreement and an applicable Work Order.
2. Purchase of Services. Customer may, from time to time, purchase Services from Data Defined by executing a written statement of work, scope of work, managed services agreement, outsourcing agreement, or other quotation or proposal (each, a “Work Order”) together with a Terms and Conditions Agreement (the “Terms and Conditions”). All such Work Orders and Terms and Conditions are hereby expressly incorporated in, and subject to, the terms of this Agreement. The sole authority to commence effort by Data Defined or to obligate payment by Customer shall be a written Work Order executed by both Parties hereto. The Services shall be provided in accordance with the provisions of this Agreement, the Terms and Conditions, and any Work Order. Unless explicitly provided otherwise therein, in the event of a direct conflict between: (a) the terms of this Agreement and any Work Order, the terms of this Agreement shall control; (b) the terms of this Agreement and the Terms and Conditions, the terms of this Agreement shall control; and (c) the terms of the Terms and Conditions and any Work Order, the terms of the Terms and Conditions shall control.
3. Confidentiality. From time to time during the Term, Customer may disclose or make available Data Defined trade secrets, confidential information, or other proprietary information (“Confidential Information”). As used herein the term “Confidential Information” does not include information which: (a) is now, or hereafter becomes, through no act or failure to act on the part of Data Defined, generally known or available to the public; (b) is hereafter rightfully furnished to or acquired by Data Defined from a third party, without restriction as to use or disclosure; or (c) is information which was independently developed or acquired by Data Defined without breach of any obligation of confidentiality or use of, or access to, any of Customer’s Confidential Information.
Data Defined shall, for two (2) years from disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as Data Defined would use to protect its own confidential information, but in no event with less than a commercially reasonable degree of care; (y) not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except: (i) to Data Defined’s representatives who need to know the Confidential Information to assist Data Defined, or act on its behalf, to exercise its rights, or perform its obligations under this Agreement; or (ii) pursuant to applicable federal, state, or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Data Defined shall first provide Customer with: (A) prompt notice of such requirement; and (B) reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure. The provisions of this Section shall survive termination or expiration of this Agreement for any reason for a period of 2 years after such termination or expiration. At any time during or after the Term, at the Customer’s written request, Data Defined and its representatives shall promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
4. Performance of Services. Data Defined shall perform the Services for the Customer during the Term of this Agreement. During the Term, the Customer shall provide Data Defined with access to the Computer System and with sufficient workspace and adequate conditions required to perform the Services. Data Defined shall be relieved of its obligation to perform the Services if:
- (The premises on which the Computer System is to be installed do not meet the manufacturer’s specifications.
- the Computer System, in whole or in part, is defective or is not otherwise in good operating condition.
- The Customer makes alterations, additions, or modifications to the Computer System or any portion thereof that interferes with its normal and satisfactory operation.
- the Customer has breached any license or user agreement term to which the Computer System, or any portion thereof, is subject; or
- the Customer asks Data Defined to take any action that would, in the exercise of Data Defined’s sole discretion and judgment, result in the breach of any license, law, or user agreement.
5. Ownership and License.
- Data Defined and Customer acknowledge that Data Defined personnel will only be providing the Services and that no deliverables will be provided except as expressly set forth in any applicable Work Order. Customer agrees that, notwithstanding anything to the contrary set forth herein: (i) Data Defined shall have the right to retain a copy of any work product of its personnel; and (ii) as part of Data Defined’s provision of the Services specified in the Work Order, Data Defined may utilize Existing Materials which shall remain the sole and exclusive property of Data Defined. Notwithstanding anything contained herein to the contrary, Customer shall not have or obtain any rights in such Existing Materials, including, without limitation, proprietary products, materials, and methodologies of Data Defined or any third parties. Until the Customer has paid and fully satisfied its obligations under the applicable Work Order and this Agreement, Data Defined shall retain title to and ownership of all Work Product. At the time that the Customer has paid all amounts owed under an applicable Work Order and provided that the Customer is otherwise not in breach of its obligations under the terms and conditions of this Agreement or such Work Order (such time being referred to herein as the “Passage of Title”), all Work Product under such Work Order shall become and shall thereafter be property of Customer, and Customer shall retain all rights to such Work Product, exclusive of any component derived from Existing Materials. Customer hereby authorizes Data Defined, at any time prior to the Passage of Title, to file financing statement(s) or take other actions to perfect its interest in the Work Product. In the event of a default by Customer hereunder, in addition to, and not in substitution of, any other rights Data Defined may have at law or in equity, Data Defined shall have the right to enter upon any location where Work Product is located and to take possession of, remove, or render inoperable any Work Product. Customer shall allow Data Defined access to any such Work Product located on its own property and grant permission for Data Defined to enter upon the property of others for the purpose of carrying out its rights described herein.
- To the extent that Existing Materials are incorporated in any deliverables (including Work Product), Data Defined grants to Customer a royalty-free, irrevocable, worldwide, nontransferable, non-exclusive, internal use, perpetual license to use, modify, and prepare derivative works of such Existing Materials and to use and display such Existing Materials, but only to the extent required to utilize the deliverables in accordance with all limitations in this Agreement and as may be set forth in the relevant Work Order. Nothing in this Section shall be deemed to permit Customer to disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify, create derivative works of, or transfer any of Data Defined’s or its licensor’s Existing Materials to a subsidiary, affiliate, or third party without prior, written consent of Data Defined. Furthermore, nothing herein shall be construed as limiting Data Defined’s ownership of any patent, copyright, or other intellectual property or trade secret rights in any information developed independently of this Agreement even though such information may have been used in connection with Data Defined’s performance of its obligations under this Agreement. Nothing herein shall prohibit Data Defined or its affiliates or any of their employees or subcontractors from providing similar services to others and/or from using or disclosing to others the general knowledge, skill, and experience that they have developed over the years, including the general knowledge, skill, and experience that Data Defined and they develop under this Agreement.
6. Customer Responsibilities.
- Unless otherwise specified, Customer shall be responsible for preparing a suitable installation site, backing-up all electronically stored data during the Term, and installing and connecting its product(s) within Customer’s environment compatible to manufacturer’s specifications and as may be described in more detail in the Work Order.
- Customer acknowledges that for Data Defined to perform the Services, Customer must make certain personnel or other resources available to Data Defined in a timely manner. Customer agrees that it will cooperate in providing information or personnel upon Data Defined’s request, and Customer acknowledges that its failure to do so may prevent Data Defined from meeting milestones as may be designated in a Work Order.
- Customer assumes responsibility for all content, material, message, or data made available or transmitted in accordance with the provision of the Services and for its compliance with all applicable federal, state, and local laws, regulations, ordinances, and codes, and acceptable use policies of any third-party vendors or websites. Customer assumes full responsibility to back-up and/or otherwise protect all data against loss, damage, or destruction.
- Customer must keep records relating to all use and distribution of all Software Publisher software licenses (the “Software License”). Customer represents and warrants that Customer has title to or has a license or the right to use or modify the Software License or right to permit Data Defined to use, access or modify any Software License that Customer has requested Data Defined to use, access or modify as part of the Services. It is the Customer’s responsibility to independently ensure that ALL Software Licenses in use by Customer are properly licensed. Data Defined will not promote the use of, or knowingly support software which is not properly licensed by the Customer.
- Data Defined has the right, at the Customer’s expense, to verify compliance with the Software License terms. Customer must promptly provide any information reasonably requested by Data Defined or any independent auditor retained by Data Defined in furtherance of the verification, including access to systems running the Software License and evidence of licenses for the Software License that Customer uses. The customer agrees to complete Data Defined’s self-audit process, which Data Defined may request at any time.
- Assistance with software audits or Software Licensing compliance matters is billable at Data Defined’s current hourly rates. If the number of Software License deployments in Customer’s environment exceeds the number of Software Licenses (“Excess Software License Deployments”) in any given month, Data Defined will invoice Customer for Excess Software License Deployments at then current rates. Furthermore, if verification of the Data Defined audit reveals any unlicensed use of the Software License, at Customer’s own expense, Customer must immediately order and purchase sufficient licenses to cover its use. Customer agrees to pay Data Defined within ten (10) days of receipt of any invoice.
- Data Defined will monitor Customer’s software usage regarding any Software Publisher on an ongoing basis to verify Customer’s compliance with the license terms for the Software License. Data Defined may engage an independent auditor, which will be subject to a confidentiality obligation. Any information collected in the Data Defined self-audit will be used solely for purposes of determining compliance. This verification will take place during normal business hours and in a manner that does not unreasonably interfere with the Customer’s operations. Data Defined has the right to use software license tracking tools to provide the Services and to monitor the Customer’s compliance with the terms of this Agreement. Even though Data Defined has the right to monitor Customer’s usage of software on an ongoing basis, Data Defined is not obligated to monitor Customer’s network for Software License compliance, Customer is responsible for any outcomes and consequences for its own software usage and/or Software License compliance. Customer acknowledges that Microsoft reserves the right to audit Customer for any use of Microsoft Products.
- Customer shall fully cooperate with Data Defined throughout the provision of the Services. Customer shall not uninstall or interfere with the software licensing tracking tools used by Data Defined to administer the Service, and Customer shall grant Data Defined all appropriate permissions and allow Data Defined the ability to implement configurations to allow the software tracking tools to function properly.
7. Service Terms.
- Data Defined may locate servers containing Software Products (“Servers”) on Customer’s premises (“Customer Facility”) solely to provide the Software Products to Customer, provided that the Servers remain under the day-to-day management and control of the Data Defined. Customer shall identify all Servers using the Software Products at Customer’s Facility. Customer agrees not to install Software Products on Customer Servers without the written permission of Data Defined. The customer also agrees not to move or repurpose any Server without the written permission of Data Defined. Customer acknowledges and agrees that Data Defined has the right to use software license tracking tools to provide the Services and to monitor Customer’s compliance with the terms of this Agreement. Upon request of Data Defined, Customer will promptly identify the number of Servers located at each Customer Facility and the Software Products installed on such Servers or allow Data Defined to identify the information onsite. Customer shall not access, maintain, or otherwise use the Software Products in violation of this Agreement or any Software Publishers End User License Agreement. Customer is responsible for all its obligations under this Agreement regardless of the physical location of the Servers involved in providing the Service. Customer will be responsible to the Software Publisher for any unauthorized installation, use, copying, access, or distribution of the Products by Customer.
- The Software Products are licensed on Customer Servers on a month-to-month basis under the applicable Software Publisher’s licensing programs (e.g., Microsoft SPLA). All Software Products licensed and provided by Data Defined are not perpetual licenses, and the Software Product licenses are not owned by the Customer. Only Customer Servers listed in this Agreement or that are pursuant to an applicable Change Order are covered by the terms of this Agreement. Software Publisher licensing does not extend to any other Customer Servers or devices that may be present on the Customer’s network. Customer’s Server must remain under the day-to-day management of Data Defined to maintain Customer’s licensing status under this Agreement. Any Software Publisher license on Customer Servers located at Customer’s onsite location shall be limited to the applicable Software Publisher licensing program (e.g., Microsoft Windows Server licensing only), and such Software Publisher licensing does not include licensing for any other products that may be present on Customer’s Server. Customer understands and agrees it will be responsible for all Software Publisher licensing after any suspension and/or Termination date.
- Customer Obligations: Customer shall maintain a minimum of One Million Dollars (US $1,000,000) in insurance coverage through its respective carriers. Such insurance must include, at a minimum, commercial general liability, first party cyber liability.
- Data Defined Obligations: Data Defined agrees to maintain during the Term professional liability insurance, including errors and omissions coverage, with aggregate limits of at least One Million Dollars (US $1,000,000). Customer’s insurance shall be primary over Data Defined’s insurance. The customer agrees to waive and to require its insurers to waive any rights of subrogation or recovery as to Data Defined, its agents, officers, directors and/or employees.
9. Mutual Non-Solicitation.
- Customer. During the Term and for one (1) year thereafter, Customer agrees that neither it nor any of its affiliates or any of their representatives shall, directly or indirectly, for itself or on behalf of another person or entity solicit for employment or otherwise induce, influence, or encourage to terminate employment with, make any offer to, or employ or engage as an independent contractor any employee of Data Defined, or any of its affiliates with whom Customer had more than incidental contact, or who became known to Customer in connection with the provision of the Services hereunder.
- Data Defined. During the Term and for one (1) year thereafter, Data Defined agrees that neither it [nor any of its direct subsidiaries] or any of their representatives shall, for itself or on behalf of another person or entity, solicit for employment or otherwise induce, influence or encourage to terminate employment with, make any offer to, or employ or engage as an independent contractor any employee of Customer or any of its affiliates with whom Data Defined had more than incidental contact or who became known to Data Defined in connection with the provision of the Services hereunder.
- Nothing in this Section 7 shall be deemed to prohibit general solicitations through the media or by a search firm, in either case, that is not directed specifically to any covered employee(s), unless such solicitation is undertaken to circumvent the restrictions contained in or conceal a violation of this Section 7.
10. Pricing and Payment.
- The pricing for the Services shall be as set forth in the applicable Work Order. Unless otherwise set forth in the applicable Work Order, Customer shall pay Data Defined for its time spent according to its then-current list pricing. Rates are quoted on an hourly basis and time spent will be rounded up to the one-quarter (0.25) hour for billing purposes. Data Defined will charge for travel from the nearest Data Defined office, at the current hourly labor rate per employee or consultant, unless otherwise specified. In addition, Customer shall pay Data Defined for all supplies and consumables, including cables and wires, which Data Defined utilizes in the performance of the Services and all applicable taxes, duties, and levies resulting from the Services and/or the supplies and consumables furnished by Data Defined, excluding the taxes based on Data Defined’s income.
- Unless otherwise agreed in writing, payment for the Services is due within fourteen (14) days of the date of issuance of the invoice by Data Defined. Customer shall pay to Data Defined a late payment charge of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that any payment to Data Defined is in arrears. Customer agrees to pay all costs of collection, including court costs and reasonable attorney’s fees, incurred in the collection of any past due amount. Customer acknowledges that Data Defined may participate in and retain the benefit of vendor incentive plans, rebate programs, or other programs with, among others, its travel providers wherein Data Defined may receive benefits, such as frequent flier miles or other consideration.
- Any pricing information, estimates, and all other proposed solutions included in this Agreement, or the Work Order are based on Data Defined’s understanding and assumptions of the requirements and environment represented in the corresponding Work Order, and on Data Defined being awarded the entire scope of the work being requested (collectively, the “Conditions”). In the event any of the Conditions are not accurate or if any Condition changes or is altered during the term of this Agreement, Data Defined shall have the right to terminate this Agreement and any related Work Order immediately upon notice to the Customer.
- DATA DEFINED WARRANTS THAT ITS SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER, USING REASONABLE SKILL AND CARE CONFORMING TO GENERALLY ACCEPTED INDUSTRY STANDARDS AND IN COMPLIANCE WITH APPLICABLE LAW. CUSTOMER UNDERSTANDS THAT DATA DEFINED SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR, OR WARRANTY OF ANY THIRD-PARTY SOFTWARE OR HARDWARE PRODUCTS THAT MAY BE INCLUDED IN OR REFERRED TO IN THE WORK ORDER, AND CUSTOMER SHALL LOOK SOLELY TO SUCH THIRD PARTY FOR ALL REMEDIES AND SUPPORT WITH REGARD TO SUCH PRODUCTS OR SERVICES.
- ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF, CUSTOMER AND DO NOT EXTEND TO ANY THIRD PARTY. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED.
- DATA DEFINED ASSUMES NO RESPONSIBILITY FOR AND CUSTOMER FULLY RELEASES DATA DEFINED FROM CLAIMS FOR APPLICATION FAILURES, DATA LOSS, OR OTHER HARM, INJURY OR DAMAGE SUFFERED AS A RESULT OF SOFTWARE BUGS OR INCOMPATIBILITIES, SPYWARE, HACKING, OR ANY OTHER UNAUTHORIZED SYSTEM ACCESS, SABOTAGE, OR INFORMATION THEFT.
12. Term. Unless sooner terminated in accordance with Section 11 or 15 below, the term of this Agreement (“Term”) shall commence on the Effective Date and shall continue until the later of: (a) the two year anniversary of the Effective Date; or (b) the date on which all Work Orders entered into in connection with this Agreement have expired, been terminated in accordance with their terms, or the Parties have completed performance of all of their obligations thereunder. For avoidance of doubt, upon the occurrence of such event, this Agreement shall be deemed expired or terminated without any further action of the Parties.
13. Termination; Effect of Termination. This Agreement may be terminated upon the occurrence of any of the following:
- by Data Defined at any time upon written notice if Customer fails to promptly pay in full to Data Defined any amounts, charges or taxes required to be paid under this or any other agreement with Data Defined.
- by either Party at any time in the event of a material breach of the terms hereof by giving the other Party ninety (90) days written notice stating the nature of the breach. This Agreement and all Work Orders shall then terminate if the breaching Party shall fail to cure such material breach within ninety (90) days of receipt of written notice thereof. If the breach is of such a nature that it cannot reasonably be cured within such period, the breaching Party shall commence to cure said breach within such period, then diligently prosecute such cure to completion.
- by either Party at any time in the event the other Party becomes insolvent or seeks protection, voluntarily or involuntarily, under bankruptcy or receivership law, or executes an assignment or similar document for the benefit of creditors.
- by either Party, for any reason or no reason, upon ninety (90) days written notice to the other Party.
Termination of this Agreement shall also constitute termination of all Work Orders. Termination does not relieve the Customer’s obligation to pay all accrued fees and amounts. In the case of any hardware leases, the outstanding balance is due in full upon termination of the applicable Work Order. The termination of any Work Order in accordance with its terms shall not terminate this Agreement or any other Work Order. Sections 1, 3, 5, 9, 11, 14, 15, 16, and 19 shall expressly survive the termination of this Agreement.
14. Termination Charges. If any Work Order is terminated early for any reason other than by Data Defined in accordance with Section 13(d) above, then a termination charge shall be due from Customer to Data Defined on the termination date. The termination charge for each Service is as set forth on the applicable Work Order. Customer agrees that the damages that would be sustained by Data Defined from Customer’s early termination or default of a Work Order or this Agreement cannot readily be determined, and that the termination charge constitutes “liquidated damages” and not a penalty. The customer waives any claim that such termination charge constitutes a penalty.
15. Limitation of Liability.
- IN NO EVENT SHALL DATA DEFINED BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PERFORMANCE OR BREACH THEREOF OR ANY WARRANTY CLAIM, EVEN IF DATA DEFINED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DATA DEFINED’S TOTAL LIABILITY TO CUSTOMER HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE LESSER OF THE TOTAL OF THE AMOUNTS PAID TO DATA DEFINED HEREUNDER BY CUSTOMER OVER THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM OR TEN THOUSAND DOLLARS ($10,000).
- IN NO EVENT SHALL DATA DEFINED BE LIABLE TO CUSTOMER FOR (a) ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF ANY ANTI-VIRUS SOFTWARE, ONLINE BACKUP SERVICE, BACKUP SOFTWARE, FIREWALLS, OR OTHER SECURITY-RELATED SOFTWARE OR HARDWARE; (b) ANY DAMAGES RESULTING FROM OR RELATED TO ANY VULNERABILITY IN CUSTOMERS COMPUTER SYSTEM, INCLUDING AS A RESULT OF HACKING BY A THIRD PARTY; (c) ANY LOSS OF, OR DAMAGE TO, ANY OF CUSTOMERS’ RECORDS OR DATA; OR (d) FAILURE OF AIR-CONDITIONING, HUMIDITY CONTROL, AND ELECTRICAL POWER; PROVIDED THIS SENTENCE SHALL NOT LIMIT DATA DEFINED’S LIABILITY TO THE EXTENT THAT SUCH FAILURE OR LOSS IS CAUSED BY AN ACT OR OMISSION OF DATA DEFINED THAT CONSTITUTES A BREACH BY DATA DEFINED OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OF ITS WARRANTIES UNDER SECTION 9.
- NO ACTION WHATSOEVER ARISING OUT OF THE TRANSACTIONS OR SERVICES RELATED TO OR UNDER THIS AGREEMENT OR ANY WORK ORDER MAY BE INITIATED BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED, EXCEPT FOR PAYMENTS OWED HEREUNDER.
- Information security threats are continually changing, with new vulnerabilities discovered daily. Data Defined makes no representations, warranties, guarantees, or legal certifications related to identification of such vulnerabilities. If provided as part of the Services, the Customer acknowledges that vulnerability testing does not protect against personal or business loss. Data Defined offers no representation, warranties, guarantees or legal certifications concerning the applications or systems it tests. Data Defined does not warrant that the resources tested are suitable for task, free of other defects, fully compliant with any industry standards, or fully compatible with any operating system, hardware, or other application.
16. Indemnification. Customer hereby agrees to indemnify, hold harmless, and defend Data Defined its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives from and against any and all losses and liabilities suffered, incurred by or asserted against Data Defined as a result of, or that arise out of, in connection with, or related to the Customer Materials and any third-party claim resulting from the infringement of any third parties’ trade secret, trademark, copyright, or patent rights by Customer, its affiliates, and representatives. Without limiting the foregoing, Customer agrees to indemnify and hold Data Defined harmless against and from all liabilities and expenses (including without limitation reasonable attorney’s fees and any surcharges, penalties, damages or other sums payable to a Software Publisher) which are incurred by Data Defined as the result of:
- Customer’s unauthorized manufacture, copying, reproduction, distribution, installation, access, modification, or use of any Software Products (including without limitation any piracy or counterfeiting of software or other infringement of or interference with the Software Publisher’s intellectual property rights),
- Customer’s failure to stop using, return or comply with other instructions concerning the Software Products following notice from the Software Publisher or Data Defined that the Software Products in question may be the subject of an infringement claim,
- Customer’s use, access, or modifications of any software that Customer requested that Data Defined use, access, or modify as part of the Services infringes any patent, copyright, trademark, trade secret or other intellectual property right,
- Customer’s use, access, or modifications of any software that Customer uses, accesses, or modifies as part of the Services infringes upon any patent, copyright, trademark, trade secret or other intellectual property right, or
- Any claim related to any Software Products licensing and/or any Software Products licensing compliance.
The customer agrees to pay any judgments or settlements based on any such claims related to its use of any Software Products.
17. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from a Force Majeure Event. The Party who has suffered or been so affected by a Force Majeure Event shall give notice to the other Party within five (5) business days of the Force Majeure Event and the impacted party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. Delays in delivery due to Force Majeure Events shall automatically extend the delivery date for a period equal to the duration of such events and any warranty period affected by a Force Majeure Event shall likewise be extended for a period equal to the duration of such event. A Force Majeure Event, however, shall not apply to or extend the Customer’s obligation to pay for the Services.
18. Relationship of the Parties. The relationship created hereunder between the Parties shall be solely that of independent contractors. No representations or assertions shall be made, or actions taken that could imply or establish any agency, fiduciary, joint venture, partnership, employment, or other relationship between the Parties with respect to the subject matter of this Agreement. Data Defined reserves the right to subcontract with individuals and businesses.
19. General Provisions.
- All notices, demands, or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person, by e-mail, by United States mail, certified, or registered with return receipt requested, or by a nationally recognized overnight courier service, or otherwise actually delivered:
- All notices, demands, or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person, by e-mail, by United States mail, certified, or registered with return receipt requested, or by a nationally recognized overnight courier service, or otherwise actually delivered:
If to the Customer:c/o
If to Data Defined:
ATTN: David Buthlay, CEO
9 Industrial Parkway
Brunswick, ME 04011
- or at such other address as may have been furnished by such person in writing to the other Parties. Any such notice, demand or communication shall be deemed given on the date given, if delivered in person, e-mailed, or faxed or otherwise actually delivered, on the date received, if given by registered or certified mail, return receipt requested or given by overnight delivery service, or three (3) days after the date mailed, if otherwise given by first class mail, postage prepaid.
- Entire Agreement. This Agreement, any Work Order, the Terms and Conditions (including, in each case, any attached exhibits and schedules), and the other agreements, documents, and instruments contemplated hereby or thereby constitute the entire understanding of the Parties, and there are no further or other agreements or understandings, written or oral, in effect between the Parties relating to the subject matter hereof.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile or .PDF transmission shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or .PDF shall be deemed to be their original signatures for all purposes.
- Interpretation. This Agreement shall not be construed against any Party, and no consideration shall be given, or presumption made, based on which Party drafted this Agreement, or any particular provision hereof, or supplied the form of Agreement.
- Governing Law; Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of Maine, exclusive, however, of such State’s rules respecting the choice of law. The Parties hereby agree that any suit, action, or proceeding arising out of, or based upon, any claim arising under or relating to this Agreement shall be instituted in the courts of the State of Maine sitting in the City of Portland, Maine and/or the United States District Court for the District of Maine, and irrevocably agree that all actions or proceedings arising under or relating to this Agreement, or any agreement or instrument executed hereunder, shall be litigated in such courts, and each Party hereby waives any objection to the personal or subject matter jurisdiction of such courts or to the laying of venue of such suit, action, or proceeding therein.
- Severability. If any provision of this Agreement is declared invalid by any tribunal, then such provision shall be deemed automatically modified to conform to the requirements for validity as declared at such time, and as so modified, shall be deemed a provision of this Agreement as though originally included herein. If the provision invalidated is of such a nature that it cannot be so modified, the provision shall be deemed deleted from this Agreement as though the provision had never been included herein. In either case, the remaining provisions of this Agreement shall remain in effect.
- Successors and Assigns. This Agreement, and all provisions hereof, shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties hereto, provided that this Agreement may not be assigned by any Party without the prior written consent of the other Party hereto except that this Agreement may be assigned by either Party to any of its affiliates or to any Person acquiring a material portion of the assets, business or securities of such Party, whether by merger, consolidation, sale of assets or securities, or otherwise.
- Modification; Waiver. Except as otherwise specifically set forth herein, this Agreement may not be modified, terminated, rescinded, discharged, or canceled, nor may any provision be waived without the prior written consent of the Party or Parties against whom such modification, termination, rescission, discharge, cancellation, or waiver is or may be asserted. No delay or omission by any Party to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. A waiver of any provision of this Agreement on any occasion shall not constitute a waiver of such provision on any succeeding occasion.