MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is entered into as of the date the Client places an order for Products or Services (the “Effective Date”) by and between Pro-Tek Systems, Inc. DBA PROTEK (“PROTEK”) and the legal entity identified in any order (“Client”) (individually, a “Party,” and collectively, “Parties”). Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Work unless the language or context requires otherwise. SOW-specific definitions, if any, shall be included in the applicable SOW and shall apply only with respect to such SOW. This Agreement contains general contractual terms for all information technology services to be provided by PROTEK. The specific information technology services that PROTEK will provide (the “Services”), applicable pricing and payment terms, service level agreement, if any, and other transaction-specific provisions will be agreed upon through statements of work to this Agreement (each a “Statement of Work” or “SOW”). Each SOW shall be signed by both Parties and will be deemed to incorporate all of the provisions of this Agreement by reference. Each SOW will be a separate agreement between PROTEK and Client.
In the event of any inconsistencies between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement shall control. The Parties may specify in the applicable SOW that a particular provision of the SOW is to supersede a provision of this Agreement, in which case the superseding SOW provisions shall be applicable only to such SOW and shall be effective for such SOW only if such provision expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement. PROTEK rejects any additional terms on any Client ordering document.
SCOPE OF SERVICES
1.1. Scope of Services. Subject to the terms and conditions in this Agreement and the applicable SOW, PROTEK will use commercially reasonable efforts to perform the Services described in the applicable Statements of Work. Any Services not specifically provided in the SOW are considered out of scope. In the event Client wishes to request an expansion in the scope of the Services or otherwise change the scope of the SOW, then Client shall present its request for such changes in writing to PROTEK for scoping. No alterations will be permitted under this Agreement without a signed change order.
1.2 Support. PROTEK will provide Client technical support in accordance with the SOW.
1.3 Maintenance and Redundancy. Reasonable best efforts will be used by PROTEK to conduct all scheduled maintenance outside of normal business hours. However, emergency maintenance may be required to be performed during business hours. Under no circumstances will PROTEK be responsible for any data lost, corrupted, or rendered unreadable for any reason whatsoever including any failure to backup or secure data. PROTEK does not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.
1.4 Security. PROTEK will employ commercially reasonable security measures designed to protect data stored with or in the control of PROTEK by Client (“Client Data”) or Confidential Information (defined below) from unauthorized access. Client and Client’s agents, employees, and contractors will take commercially reasonable security precautions in their use of their systems and the Services. PROTEK can assist in evaluating Client’s cybersecurity needs, but it is understood and agreed that PROTEK does not offer nor provide cybersecurity assurances, warranties, or representations of any kind, and expressly disclaims any of the same unless expressly made in this Agreement. Client acknowledges that at no point, and under no theory, shall PROTEK be liable for any losses or claims associated with any lost or compromised Client Data unless and only to the extent such losses or claims are shown to be solely the result of the gross negligence of PROTEK.
1.5 Data Retention and Client Data. PROTEK will maintain Client Data, including such personal information (defined below) found within Client Data, pursuant to the terms of this Agreement. PROTEK does not own, nor will PROTEK use or disclose to any third party, any Client Data that Client may store with PROTEK unless necessary to provide the Services and then, only to the extent necessary to do so.
Client shall be responsible for the accuracy, quality, integrity, lawfulness, reliability, and appropriateness of all Client Data. Client grants PROTEK (and to the extent necessary for performance of the Services, PROTEK’s subcontractors) a non-exclusive, limited, non-transferable license to use, store, and otherwise handle Client Data only to the extent necessary to perform the Services for Client pursuant to this Agreement.
1.6 Encryption. Client shall encrypt at the application level Confidential Information, Client Data, and all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Client’s contractual obligations to others. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).
1.7 Acceptable Use. Client is responsible for all acts and omissions of its Users in connection with receipt or use of the Services. “User” means any entity or individual that receives or uses the Services, or the results or products of the Services, through Client. Client agrees, and will ensure its Users agree, to act responsibly and not use the PROTEK Services for any illegal or unauthorized purpose including, but not limited to, hacking, phishing, spamming, identity theft, financial fraud, e-mail spoofing, virus distribution, network attacks, pirating software, harassment, using copyrighted text, sharing illegal software, and unauthorized use of images. PROTEK has the right to investigate potential violations of this Section. If PROTEK determines that a breach has occurred, then PROTEK may, in its sole discretion: (a) restrict Client’s and Users’ access to the Services; (b) remove or require removal of any offending Content; (c) terminate this Agreement for cause; and/or (d) exercise other rights and remedies, at law or in equity. “Content” means information, software, Customer Data and other data including, without limitation, HTML files, scripts, programs, recordings, sound, music, graphics, and images that Customer or any of its Users create, install, upload or transfer in or through to PROTEK in connection with its performance of the Services. “Customer Data” means all data and information about Client’s business(es), customer’s employees, operations, facilities, products, markets, assets or finances that PROTEK obtains, creates, generates, collects or processes in connection with its performance of Services. Except in an emergency or as may otherwise be required by law, before undertaking the actions in this Section, PROTEK will attempt to notify Client by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Client will promptly notify PROTEK of any event or circumstance related to this Agreement, Client’s or any User’s use of the Services, or Content of which Client becomes aware, that could lead to a claim or demand against PROTEK, and Client will provide all relevant information relating to such event or circumstance to PROTEK at PROTEK’s request. PROTEK agrees to allow Client complete and unrestricted access at all times to Client’s software applications, devices, equipment, hardware, and all Services-related license files so that Client can audit its Users’ compliance with the terms of this Agreement.
1.8 Content. Client is solely responsible for: (a) all Content including, without limitation, its selection, creation, design, licensing, installation, accuracy, maintenance, testing, backup and support; (b) all copyright, patent and trademark clearances in all applicable jurisdictions and usage agreements for any and all Content; (c) the selection of controls on the access and use of Content; and (d) the selection, management and use of any public and private keys and digital certificates it may use with the Services.
FEES, INVOICING, AND TAXES
2.1. Fees. The initial schedule of fees for the Services shall be as indicated in the SOW.
2.2. Reimbursable Expenses. Except as may otherwise be stated in the applicable SOW, Client agrees to reimburse PROTEK all reasonable and customary out-of-pocket expenses, including, but not limited to, airfare, rental car, mileage, tolls, and lodging expenses, incurred by PROTEK in connection with the performance of services. Meal expenses shall be billed at PROTEK’s then-current per-diem amount. Travel time will be billed at one-half the on-site billable rate each way. Reimbursable expenses shall be invoiced on a monthly basis. Upon request by Client, PROTEK shall provide copies of documentation for such expenses.
2.3. Invoicing and Payment. Payment of recurring monthly fees for Services shall be remitted monthly on a prepaid basis via ACH or preauthorized credit card. For reimbursable expenses, any out of scope Services, or other invoiced Services, amounts will be due and payable within five (5) days of invoice. Client is responsible for providing PROTEK with Client’s complete and accurate billing and contact information and notifying PROTEK of any changes to such information.
2.4. Overdue Charges. Subject to the “Payment Disputes” section, if any invoiced amount is not received by PROTEK before the due date, then, without limiting PROTEK rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Should collection action be required, Client shall reimburse PROTEK for all collection costs, including attorneys’ fees and costs.
2.5. Suspension of Services. Subject to the “Payment Disputes” section, if any amount owed by Client under this Agreement is ten (10) days or more overdue, PROTEK may, without limiting other rights and remedies, suspend Services until such amounts are paid in full. Such suspension may include a suspension of any third-Party services provided through PROTEK. PROTEK shall not be liable for any losses or claims of any kind, as a result of such suspension or interruption in Services or third-Party services. Failure to remit timely payment shall constitute a material breach of this Agreement. Further, the above notwithstanding, with respect to payments for Microsoft licensing, where payments for Microsoft licensing are not made within 10 days of their due date, then PROTEK reserves the right to disable those licenses. The Parties agree that PROTEK shall not be liable for any losses, claims, or other liability of any kind resulting from PROTEK’s suspension of Services or the licensing of Microsoft (or other third-party technology) for non-payment under these terms.
2.6. Payment Disputes. PROTEK will not exercise our rights under the “Overdue Charges” or “Suspension of Services” sections above if Client is reasonably disputing the applicable charges and are cooperating diligently to resolve the dispute.
2.7. Taxes. It is understood that any federal, state or local taxes applicable shall be added to each invoice for Services rendered under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to PROTEK for the state of use.
PROPRIETARY RIGHTS AND LICENSE
3.1. Ownership. Client does not grant to PROTEK any rights in or to Client’s intellectual property except such licenses as may be required for PROTEK to perform the Services required by the Agreement. The Client agrees that PROTEK may utilize certain items of the Client’s equipment and may gain access to certain parts of the Client facilities and that all such access or use is hereby authorized and licensed by Client and any necessary third parties. The Client retains title and ownership in all equipment purchased by Client and utilized by PROTEK and must grant authority for PROTEK to access Client’s facility. In the event Client does not grant or revokes access to their facility, Client understands that PROTEK may be unable to perform Services and PROTEK will not be responsible for any delay caused by inability to access Client facilities. PROTEK retains title and ownership in all equipment and intellectual property purchased by PROTEK or provided by PROTEK to Client in its provision of the Services.
3.2 Third Party Software and Licenses. Some Services provided under this Agreement may require third-party software. Client agrees to enter into any third-party software licenses as necessary for the use and functioning of such third-party software. Client further agrees to comply with all terms of any third party’s licenses for the third-Party software. PROTEK shall not be responsible for any licenses associated with the third-party software and Client represents and warrants that it has obtained any and all required licenses and such licenses are up to date. “Third-party software” means software produced, sold, or licensed from a third party, and purchased, licensed, or otherwise acquired by Client directly from a third party. Any licenses not purchased directly from a third party and provided by PROTEK in its provision of Services to Client shall remain the sole and exclusive property of PROTEK. Client also acknowledges that licenses obtained from Microsoft are purchased in advance and thus must be paid for by Client in timely manner.
3.3 Required Consents. As used in this Agreement, “Required Consents” means any consents, licenses, or approvals required to give PROTEK, or any person or entity acting for PROTEK under this Agreement, the right or license to access, use and/or modify in electronic form and in other forms, including, without limitation, derivative works, the Client Data, software, and systems, without infringing the ownership or intellectual property rights of the providers, PROTEK, or owners of such Client Data, software, and systems. Client shall obtain and keep in effect all Required Consents necessary for PROTEK to perform all of its obligations as set forth in this Agreement. Upon request, Client will provide to PROTEK evidence of any Required Consent. PROTEK will be relieved of its obligations to the extent that they are affected by Client’s failure to promptly obtain and provide to PROTEK any Required Consents. PROTEK will adhere to reasonable terms and conditions pertaining to Client Data as notified in writing to PROTEK. PROTEK agrees not to remove or alter any copyright or other proprietary notice on or in any Client Data without Client’s consent.
3.4 Services. PROTEK retains all right, title, and interest in the Services and in all improvements, enhancements, modifications, or derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, and trademark. The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and Client agrees not to disclose such information to any third party without PROTEK’s prior permission.
CONFIDENTIAL AND PERSONAL INFORMATION
4.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each Party includes this Agreement, all SOWs, business and marketing plans, strategies, data, technology and technical information, access credentials, and business processes disclosed by such Party. Confidential Information does not include any information that:
(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
(c) is received from a third party without breach of any obligation owed to the Disclosing Party; or
(d) was independently developed by the Receiving Party.
As between the Parties, each Party retains all ownership rights in and to its Confidential Information.
4.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect its own confidential information of like kind (but not less than reasonable care). Receiving party will:
(a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and
(b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
4.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
4.4 Remedies. The Parties expressly agree that due to the unique nature of the Confidential Information, monetary damages may be inadequate to compensate for any breach of the covenants and agreements set forth in this Agreement. Accordingly, the Parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury and that, in addition to any other remedies that may be available in law, in equity, or otherwise, the Parties shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach without the necessity of proving actual damages.
4.5 Personal Information. The Parties expressly agree that PROTEK may have reason to access Client Data, including any personal information found therein, during the course of providing the Services, where the term “personal information” is defined to mean information which identifies, describes, is associated with, or could be linked to an individual, such as a name, birthdate, postal address, email address, telephone number, driver’s license number, Social Security number, or other government -issued identification number, credit card number or other unique identifiers. And that Client hereby expressly authorizes and grants PROTEK permission to access such Client Data, including any personal information therein, as necessary to perform the Services. PROTEK warrants that it shall limit any such access to Client Data, including any personal information to only that which is necessary to perform the Services and only to those personnel having a need to view such information. Client warrants that it has all necessary rights and permissions under applicable law to disclose to PROTEK any such Client Data or personal information in connection with the provision of the Services. PROTEK shall not be liable for any access to any Client Data or personal information in Client Data for any reason resulting from the performance of the Services.
4.6 Disposal of Confidential Information. Upon termination of this Agreement or upon Disclosing Party’s request at any time, Receiving Party agrees to promptly return to Disclosing Party all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Receiving Party shall certify to Disclosing Party promptly that all such Confidential Information of Disclosing Party, including all copies thereof, has been totally and permanently destroyed. PROTEK will return to the Client all Client Data in its possession at the date of termination in its then-existing format and on its Client-supplied media, however, PROTEK may keep a copy in accordance with its record retention policy. Any conversion of format or media performed by PROTEK in order to discharge its obligations under this Section shall be at Client’s expense.
REPRESENTATIONS, WARRANTIES, REMEDIES AND DISCLAIMERS
5.1. Representations. Each Party represents and warrants to the other Party (a) it has full power and authority to enter into this Agreement; (b) it is in compliance, and will continue to comply during the term of this Agreement, with all laws and regulations governing its possession and use of Client Data and its provision or use of the Services; and c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
5.2 By Client. Client represents and warrants to PROTEK that: (a) it owns, or is a licensee of, having the right to sublicense, the Client Data and that Client has the right to grant PROTEK the rights that Client purports to grant in this Agreement; (b) PROTEK’s possession or use of the Client Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party; and (c) it will not use, nor will it allow any third parties under its control to use, the Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
5.3 By PROTEK. PROTEK warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Client’s exclusive remedy and PROTEK’s entire liability will be the re-performance of the applicable Services. If PROTEK, in its sole discretion, elects to not re-perform the Services or if, after a prompt good faith effort is made to re-perform, PROTEK is unable to re-perform the Services as warranted, Client will be entitled to recover the fees paid to PROTEK for the deficient Services. Client must make any claim under the foregoing warranty to PROTEK in writing within five (5) days of performance of such Services in order to receive warranty remedies.
5.4. Disclaimer. THE WARRANTY IN SECTION 5 ABOVE, AS WELL AS ANY OTHER WARRANTIES EXPRESSLY FOUND IN THE AGREEMENT, ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CLIENT ACKNOWLEDGES AND AGREES THAT SOFTWARE VIRUSES OR ANY OTHER COMPUTER CODE, FILES OR PROGRAMS DESIGNED TO INTERRUPT, DESTROY OR LIMIT THE FUNCTIONALITY OF ANY COMPUTER SOFTWARE OR HARDWARE OR TELECOMMUNICATIONS EQUIPMENT ARE INHERENT RISKS IN TECHNOLOGY AND PROTEK MAKES NO REPRESENTATION OR WARRANTIES THAT THE SERVICES PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
INDEMNIFICATION
6.1. Indemnification by PROTEK. PROTEK will defend Client against any claim, demand, suit or proceeding (“Claim”) made or brought against Client by a third party (i) arising out of death or personal injury to the extent caused by PROTEK’s personnel in performance of the Services or (ii) alleging that PROTEK’s Services infringes or misappropriates such third-party’s intellectual property rights, and will indemnify Client for any damages, attorneys fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved in writing by PROTEK of, any such Claim, all of the foregoing to the extent caused by PROTEK personnel or arising out of PROTEK’s Services as described in the Agreement, provided that Client: (a) promptly give PROTEK written notice of the Claim; (b) give PROTEK sole control of the defense and settlement of the Claim (except that PROTEK may not settle any Claim unless it unconditionally releases Client of all liability); and (c) give PROTEK all reasonable assistance, at PROTEK’s cost. The above defense and indemnification obligations do not apply to the extent a Claim arises from Client’s acts, omissions, breach of this Agreement, or through the combination of PROTEK’s Services, hardware, or software with any other software or product not authorized by the Agreement or by any actions taken by Client outside of those authorized by the Agreement.
6.2. Client Indemnity. Client will indemnify PROTEK against any claim, demand, suit or proceeding (“Claim”) made or brought against Client by a third party arising out of or relating to (i) any actual or alleged violation of the Agreement or applicable law, rule, or regulation by Client or any of Client’s representatives, (ii) any claims by third parties arising out of or related to Client’s relationship with such third party, or (iii) any Client Data furnished by Client hereunder that infringes or misappropriates such third party’s intellectual property rights. Client indemnifies PROTEK for any damages, attorneys fees and costs finally awarded against PROTEK as a result of, or for amounts paid by PROTEK under a settlement approved in writing by Client of, any such Claim, provided that PROTEK: (a) promptly give Client written notice of the Claim; (b) give Client sole control of the defense and settlement of the Claim (except that Client may not settle any Claim unless it unconditionally releases Client of all liability); and (c) give Client all reasonable assistance, at Client’s cost. The above defense and indemnification obligations do not apply to the extent a Claim arises from PROTEK’s breach of this Agreement.
6.3 Infringement Remedy. In the event that hardware or software used by PROTEK in the provision of Services (“Material(s)”) is reasonably believed to infringe or misappropriate a third-party’s rights, the provider of such Material may in its discretion and at no cost to the recipient:
(a) modify or replace the Material so it is no longer claimed to infringe or misappropriate;
(b) obtain a license for the recipients continued use of the Material in accordance with this Agreement; or
(c) terminate the Agreement and relevant SOW or SOWs upon thirty (30) days written notice.
6.4. Exclusive Remedy. This “Indemnification” section states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this section.
6.5 Procedure. A Party (or other person) having a right to defense and indemnification under this Agreement (“Indemnified Party”) that desires such indemnification shall tender to the Party having an obligation to defend and indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly in writing of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 6. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Claim. In no event shall either Party make any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.
LIMITATION OF LIABILITY
7.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PROTEK ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO THE LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE SOW. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CLIENT AND CLIENT’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
7.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL PROTEK HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SOW, OR THE SERVICES FOR ANY LOST PROFITS, REVENUES, DATA, GOODWILL, OR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION), THE OTHER PARTY MAY INCUR OR EXPERIENCE HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, STRICT LIABILITY AND NEGLIGENCE) EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (C) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOW FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
7.3 Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CLIENT FOR THE SERVICES WOULD HAVE BEEN HIGHER.
TERMINATION
8.1. Term. The term of each SOW shall be as specified in that Statement of Work. This Agreement shall commence on the Effective Date and remain in effect until terminated by either party as provided in this Section 8.
8.2 Termination for Convenience. Either Party may terminate this Agreement for convenience at any time upon written notice to the other Party. If there are any active Statements of Work, termination shall be effective upon the expiration or termination of the last Statement of Work. If there are no active Statements of Work, termination shall be effective upon receipt of the written notice.
8.3. Termination for Cause. A Party may terminate this Agreement for cause:
(a) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period;
If: (i) the other Party breaches any representation or warranty in this Agreement; (b) any representation or warranty is inaccurate, incomplete, false or misleading in any material aspect; or (c) the breach is of a type or nature that is not capable of being cured within such time period (such as, by way of example and not limitation, an obligation relating to Confidential Information). The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of any breach. Termination shall be effective immediately upon receipt of such notice by the breaching Party, or
(b) upon notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.4. Payment Upon Termination. Upon any termination of this Agreement by Client for cause, Client will pay, in accordance with the Fees, Invoicing, Taxes, and Payment section of this Agreement, any unpaid fees and expenses incurred on or before the termination date. Any pre-paid fees for Services charged on a fixed-fee basis are non-refundable. Upon termination or expiration of the Agreement, PROTEK shall promptly delete any Client Data within its possession within thirty days, including any data on backups, unless otherwise instructed by Client. PROTEK shall not be liable for any damages or claims arising from its deletion of data pursuant to these terms after termination or expiration.
8.5. Surviving Provisions. Those provisions that by their nature should survive termination of this Agreement, will survive termination. Without limiting the generality of the foregoing statement, the sections titled “Proprietary Rights and Licenses,” “Confidentiality,” “Representations, Warranties, Exclusive Remedies and Disclaimers,” “Fees, Invoicing and Taxes,” “Indemnification,” “Limitation of Liability,” “Term and Termination” and “General” will survive any termination or expiration of this Agreement.
8.6 Transition Services. If Client is current on payment obligations and this Agreement expires or is terminated by Client for cause in accordance with Section 8.3, PROTEK agrees to reasonably assist Client in the orderly transition of services to another designated provider in accordance with a mutually agreeable transition plan and subject to PROTEK’s then-current rates. Client agrees to pay PROTEK the actual costs of rendering such assistance.
DATA BREACHES & SECURITY INCIDENTS
9.1 If PROTEK discovers that Client Data has been, or is suspected of having been lost or compromised, then PROTEK will notify Client as soon as is possible after learning of or suspecting such loss or compromise. PROTEK will cooperate fully with any investigation of, or response to, any loss or compromise of Client Data, however PROTEK does not provide incident response services.
9.2 Any evidence of criminal activity associated with an incident (such as evidence of hacker activity) in PROTEK’s possession will be provided to appropriate law enforcement agencies.
9.3 PROTEK will notify Client of a request for information from law enforcement agencies unless otherwise requested by the law enforcement agency.
9.4 PROTEK will charge regular hourly rates to answer all required PCI/Cybersecurity audit questions posed by Client.
GENERAL PROVISIONS
10.1. Entire Agreement. This Agreement is the entire agreement regarding the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in any other documentation the Client provides to PROTEK will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
10.2. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
10.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.4. Subcontractors. PROTEK may, in our reasonable discretion, use subcontractors inside or outside the United States to perform any of its obligations hereunder. PROTEK shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
10.5. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.7. Force Majeure. Neither Party shall be liable for any delay or failure to perform hereunder due to pandemics, floods, riots, strikes, freight embargoes, acts of God, acts of war or hostilities of any nature, laws or regulations of any government (whether foreign or domestic, federal, state, county or municipal) or any other similar cause beyond the reasonable control of the Party affected. A Party relying on such an event to excuse its performance hereunder shall, as soon as reasonably possible, notify the other Party in writing of the nature of that event and the prospects for that Party’s future performance and shall thereafter, while that event continues, respond promptly and fully in writing to all reasonable requests for information from the other Party relating to that event and those prospects.
10.8 Notice. Notwithstanding any provision to the contrary, email notice shall be effective only if the receiving Party subsequently acknowledges receipt of such email via a return email to the other Party in which the original email is either referenced or reproduced. Notice provided in any method other than by email shall be deemed given either when delivered personally, or by courier, or by facsimile machine with printed transmittal confirmation sheet; or, two (2) days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to the Party for whom it is intended with copies provided to the address set forth above or to such other addresses as a Party shall hereafter designate in writing to another Party. Subject to the terms described herein, the Parties acknowledge and agree that electronic mail (“email”) and/or digital copies or electronic transmissions satisfy all “writing” requirements under this Agreement.
10.9 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Utah. The Parties agree that the sole and exclusive venue for any and all issues, claims, causes of action, or matters arising from or related to this Agreement shall be in the federal or state courts located in Salt Lake City, Utah.
10.10 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld), provided however, either Party may assign this Agreement in its entirety without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. A Party’s sole remedy for any purported assignment by the other Party in breach of this paragraph will be, at the non-assigning Party’s election, termination of this Agreement upon written notice to the assigning Party.
10.11 Successors and Assigns. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.12 Insurance. Each Party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, cyber liability, and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement. For the avoidance of doubt, each Party is solely responsible for insuring its personal property wherever located and each Party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite Party.
10.13 Non-Solicitation. During the term of this Agreement and for a period of twenty-four months thereafter, neither Party shall, directly or indirectly, in any manner, solicit employment or hire any person who performed any work related to this Agreement who is then, or was in the previous twelve months, in the employment of the other Party. A general advertisement or notice of a job listing or opening shall not be construed as a solicitation or inducement for the purposes of this Section and the hiring of any such employees or independent contractors who freely responds to such posting thereto shall not be in breach of this Section. If either Party breaches this section then the breaching Party shall, on demand, pay to the non-breaching Party as a fee and not a penalty a sum equal to half of one year’s salary or an equivalent amount if that individual is paid on an hourly basis plus the recruitment costs incurred by the non-breaching Party to replace that individual.
10.14 Dispute Resolution. If a dispute arises out of or relates to this Agreement, neither Party may commence any court proceeding relating to the dispute unless it has complied with this clause 10.14, except where that Party seeks urgent interlocutory relief or for payments of amounts due.
If the Parties are unable to resolve a dispute either Party may give notice to the other Party specifying the nature of the dispute and requiring its resolution under this clause (“Notice of Dispute”).
If the Parties cannot resolve the dispute within seven (7) days of service of the Notice of Dispute, the dispute is to be submitted to mediation and the Mediation Institute of America Rules for Mediation and Conciliation shall apply to the mediation to the extent that they are consistent with this clause.
If the Parties have not agreed on the mediator and the mediator’s remuneration within 7 days of service of the Notice of Dispute, the mediator will be appointed by, and the mediator’s remuneration will be determined by, the Mediation Institute of America, at the request of either Party and the parties will pay the mediator’s remuneration in equal shares except that each Party shall bear their own costs of and in relation to the mediation.
ADDENDUM A:
TERMS SPECIFIC TO PRODUCT SALES ONLY
This Addendum A: Terms Specific to Product Sales Only (“Addendum A”) applies to any order for software, hardware, or Services Sold by Part Number (“Products”) made by Client, for its own internal use and not for resale, pursuant to a quotation issued by PROTEK (“Quotation”). As used in this Addendum A, the term “Services Sold by Part Number” refers to services, which although ordered from PROTEK, are procured from and supplied by a third party (i.e., PROTEK does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum A.
Product Returns and Warranty Assistance.
(a) Client acknowledges that PROTEK is reselling all Products purchased by Client and that Products are manufactured and/or delivered by a third party.
(b) To the extent available, PROTEK shall pass through to Client the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. In no event will PROTEK provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fee(s).
(c) Client acknowledges that the terms and conditions governing the use of Products shall be solely between Client and the manufacturer of such Products.
Product Use and Product Warranty Disclaimer. Client will not use the Products for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. Client agrees that PROTEK is not liable for any claim or damage arising from such use.
PROTEK MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. PROTEK DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Shipment and Risk of Loss for Product Sales. All shipments of Products to Client will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Client’s identified point of delivery will be the responsibility of Client. Risk of loss will pass to Client upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Client’s representative at the point of shipment.
Product Security Interest. Client grants PROTEK a security interest in the Products detailed in each Quotation, as security for payment in full. Client authorizes PROTEK to file and/or record any documents it deems necessary to perfect this security interest.
Permitting Compliance for Product Sales. Client will obtain all licenses, permits, and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
Price and Payment. The prices set forth in any Quotation are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Client’s obligation. Prices quoted are firm for fourteen days (14) days unless otherwise specified in the Quotation. Prepayment is required for all Product purchases. In the event Client chooses to finance its purchase using a third party, Client remains liable for payment to PROTEK until PROTEK receives complete payment from such third party. All payments will be made in US currency.
Export. Client agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Client covenants that it will not, either directly or indirectly, sell, (re)export (including, without limitation, any deemed (re)export as defined by applicable law), transfer, divert, or otherwise dispose of any Product, or related software or technology, to: (i) any country or region of a country (or nationals thereof) subject to antiterrorism controls, or a U.S. embargo, (ii) any destination prohibited (without a valid export license or other authorization) by the laws or regulations of the United States, or (iii) any person, entity, vessel, or aircraft identified on the Consolidated Screening List, a downloadable file of which is accessible at http://export.gov/ecr/eg_main_023148.asp (or utilize any such person, entity, vessel, or aircraft in connection with the activities listed above), without obtaining prior authorization from the competent government authorities, as required by the above-mentioned laws and regulations. Client certifies, represents and warrants that no Product shall be used for any military or defense purpose, including, without limitation, being used to design, develop, engineer, manufacture, produce, assemble, test, repair, maintain, modify, operate, demilitarize, destroy, process, or use military or defense articles. Notwithstanding any sale of Products by PROTEK, Client acknowledges that it is not relying on PROTEK for any advice or counseling on export control requirements. Client agrees to indemnify, to the fullest extent permitted by law, PROTEK from and against any fines, penalties and reasonable attorney fees that may arise as a result of Client’s breach of this Section.
Cancelation. The purchase of Products may be canceled by Client only upon written approval of PROTEK and upon terms that indemnify PROTEK against all losses related to such cancelation.
Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM PROTEK FOR WARRANTY CLAIMS. IN ADDITION, IN NO EVENT WILL PROTEK’S LIABILITY TO CLIENT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM. PROTEK WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS ADDENDUM A, EVEN IF PROTEK HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.