NTIVA GENERAL TERMS AND CONDITIONS
Updated: July 9, 2018
These NTIVA GENERAL TERMS AND CONDITIONS (the “General Terms”) are incorporated into each agreement executed by Ntiva, Inc. (each such agreement, an “Agreement”). With respect to each Agreement, each Party agrees as follows:
1.1. “Agreement” has the meaning attributed to it in the first unnumbered paragraph of the General Terms.
1.2. “Business Day” means any weekday on which Company’s office in Virginia is open in the ordinary course of business.
1.3. “Client” means any Person that signs an Agreement with Company.
1.4. “Company” means Ntiva, Inc.
1.5. “Competitive Business” means the development, production, marketing, or sale of any product or service which competes (or, upon commercialization, would compete) with any product or service offered for sale by Company during the Term of an Agreement.
1.6. “Confidential Information” has the meaning attributed to it in Section 7.1 of the General Terms.
1.7. “Customer” means any person or entity which, or for which, at any time during the twenty-four (24) months immediately preceding termination of an Agreement, (1) contracted for or received products or services from the Company, (2) received a bid or proposal by the Company for the provision of products or services by the Company, or (3) the Company was actively preparing a bid or proposal for the provision of products or services by the Company. If the Company sells or provides products or services to a division, agency, department, office, or other like smaller identifiable post within a customer (a “Division”) and if that Division was principally responsible for deciding to obtain those products or services, then that Division shall be the Customer.
1.8 “Normal Business Hours” Company’s Normal Business Hours are in effect from 7:00 am to 7:00 pm Monday through Friday – excluding Federal Holidays.
1.9 “Afterhours and Emergency Support” For On-Site support outside of Normal Business Hours, Client will be charged 2x standard rate or 2x Agreement specified On-Site Support rate.
1.10. “Disclosing Party” has the meaning attributed to it in Section 7.1 of the General Terms.
1.11. “Force Majeure” means, with respect to any Party, any act, circumstance, or event which:
(a) is beyond the reasonable control of, and does not result from any fault or negligence of, the Party;
(b) If foreseeable, could not have been avoided by the exercise of Reasonable Efforts; and
(c) renders the Party unable to perform or otherwise comply with its obligation under the General Terms or an Agreement, except for an obligation of Client to pay any amount to Company.
1.12. “General Terms” means these Ntiva General Terms and Conditions.
1.13. “Intellectual Property Right” means any intellectual property right including, without limitation, any right, title, or interest in any patent, trademark, service, mark, trade dress, copyright, or trade secret, together with any and all goodwill relating thereto.
1.14. “Invoice” means any invoice issued to Client by Company.
1.15. “Non-Competitive Capacity” means any contract, job, duty, responsibility or other function wherein Client or Protected Employee is not involved in a Competitive Business or providing Confidential Information to a Competitive Business.
1.16. “Notice” has the meaning attributed to it in Section 14 of the General Terms.
1.17. “Party” means Company and/or Client.
1.18. “Person” means any human being or entity including, without limitation, any corporation, limited liability company, partner, or association, whether incorporated or unincorporated association.
1.19. “Procurement Deposit” has the meaning attributed to it in Section4.1 of the General Terms.
1.19. “Protected Employee” means any person employed by Company or who was employed by the Company at any time during the twenty-four (24) month period prior to the termination of each Agreement.
1.20. “Reasonable Efforts” means, with respect to a given obligation, the efforts that a reasonable person in the promisor’s position would use so as to perform that obligation as promptly as possible, except:
(a) Taking any action that would, individually or in the aggregate, cause the promisor to incur costs, or suffer any other detriment, out of reasonable proportion to the benefits to the promisor under this Agreement;
(b) Changing its business strategy;
(c) Taking any action which would violate any applicable law, regulation, or order; or
(d) Taking any action that would imperil the promisor’s existence or solvency.
1.21. “Restricted Period” has the meaning attributed to it in Section 9 of the General Terms.
1.22. “Receiving Party” has the meaning attributed to it in Section 7.1 of the General Terms.
- Relationship with Other Documents.
2.1. The most recent version of the General Terms is incorporated, by reference, into each Agreement as if fully set forth therein.
2.2. If there is a conflict between any provision of an Agreement and any provision of the General Terms, the provision of the Agreement will apply.
- Payment; Taxes.
3.1. Unless as otherwise provided in an Agreement, each month during the Term, Company shall submit an invoice to Client for the products and services provided and related expenses incurred by Company during the previous calendar month.
3.2. Client shall pay each Invoice in full and without offset within 30 days after it is issued.
3.3. If Client fails to make any payment to Company when due under this Agreement, the unpaid amount shall accrue interest at the lesser of (a) the rate of 1.5% per month; and (b) the highest rate of interest permitted by law.
- General Performance Terms.
4.1. Client shall pay to Company all costs and fees associated with any third-party software or hardware product obtained by Company on Client’s behalf. Before ordering any such third-party software or hardware product, Company may, in its sole discretion, require Client to pay an amount equal to the cost of the product plus all applicable license and other fees (such amount, a “Procurement Deposit”). Upon Client’s payment to Company of all fees and costs associated with obtaining the third-party software or hardware product, Company shall use Reasonable Efforts to transfer to Client all applicable licenses to the product.
4.2. Client shall pay all taxes arising from the license, use, or installation of any third-party software, hardware, or other product.
4.3. Client shall reimburse Company for all non-local (outside of 50 miles from Company’s office) travel and lodging expenses actually incurred by Company.
4.4. Client, at its sole expense, shall obtain all approvals, authorities, licenses, and permits necessary or appropriate to the provision of the Services.
4.5. Company shall provide the Services at Company’s offices, Client’s offices, or such other locations as determined by Company, in its sole discretion. For Services provided at Client’s offices, Client shall provide a suitable workspace and access to Client’s computer, network, servers, and such other hardware and software as requested by Company.
4.6. If Company procures for Client any software, hardware, or data product from a third-party, Company shall use Reasonable Efforts to secure for Client the all necessary licenses and permissions for the installation and use of such third-party product. Client shall use any such product only in strict accordance with any applicable license or permission.
- Ownership of Intellectual Property.
5.1. Except expressly set forth in any Agreement, each Party retains all right, title, and interest in technology and all Intellectual Property Rights which each owned as of the Effective Date and all proprietary rights inherent therein and appurtenant thereto.
5.2. If Company uses a Company product to perform any services for Client, Company and Client will execute a separate license agreement for the installation and use of the Company product.
- Use of Client’s Name. Company may use Client’s name in any Company reference list, case study, testimonial, or press release regarding Company products or services and in any advertising, publicity, or similar material presented to prospective customers.
7.1. All information disclosed by, or on behalf of, one Party (the “Disclosing Party”) to another Party (the “Receiving Party”) and designated by the Disclosing Party as “confidential,” in writing, is deemed to be confidential, restricted, and proprietary to the Disclosing Party (such information, “Confidential Information”).
7.2. Notwithstanding any other provision of this Agreement, Confidential Information does not include information that:
(a) Is published or otherwise in the public domain through no fault of the Receiving Party at the time such information was received by the Receiving Party;
(b) Prior to disclosure to the Receiving Party, is properly within the legitimate possession of the Receiving Party;
(a) Subsequent to disclosure to the Receiving Party, is lawfully received from a third party having rights in the information without restriction as to the third party’s right to disseminate the information and without notice of any restriction against its further disclosure;
(b) Is independently developed by the Receiving Party without the use of Confidential Information, by itself or through parties who have not had, either directly or indirectly, access to or knowledge of Confidential Information;
(c) Is transmitted to the Receiving Party after the Disclosing Party has received written notice from the Receiving Party that it does not desire to receive further Confidential Information; or
(d) Is obligated to be produced under order of a court of competent jurisdiction or other similar requirement of a governmental or regulatory authority, provided that the Receiving Party required to disclose the information provides the Disclosing Party with prior written notice of such order or requirement.
7.3. Each Receiving Party shall:
(a) Use such Confidential Information only for the purpose of performing under this Agreement;
(b) Not disclose any Confidential Information to any third-party except as necessary or appropriate to accomplish the intent of, and in accordance with the terms of this Agreement;
(c) Not disclose any Confidential Information to any third-party unless that third party has expressly and in writing agreed to protect such Confidential Information with the same or greater responsibilities and duty of care as a Receiving Party would have under this Agreement;
(d) Not reproduce any such Confidential Information in any form except as necessary or appropriate to accomplish the intent of, and in accordance with the terms of this Agreement;
(e) Use at least Reasonable Efforts to avoid disclosure or unauthorized use of such Confidential Information and, in any event, exercise at least the same care to avoid disclosure or unauthorized use of such Confidential Information as it exercises to protect its own similar confidential or proprietary information; and
(f) Retain all such Confidential Information in a secure place with access limited to only such of the Receiving Party’s employees or agents who need to know such information to accomplish the intent of this Agreement.
7.4. No other rights or licenses to trademarks, inventions, copyrights, patents, or any other intellectual property rights are implied or granted under this Agreement or by the conveying of Confidential Information between the parties.
7.5. All Confidential Information (including all copies of such information) unless otherwise specified in writing, remains the property of the Disclosing Party, shall be used by the Receiving Party only for the purpose for which it was intended, and shall be returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon written request of the Disclosing Party, and, in any event, upon expiration or termination of the Agreement. At the written request of the Disclosing Party, the Receiving Party shall furnish a certificate of an officer of the Receiving Party certifying that Confidential Information not returned to the Disclosing Party has been destroyed.
7.6. The obligations set forth in this Section 7 are independent covenants and, accordingly, the existence of another claim or cause of action by one Party against the other will not constitute a defense to the enforcement of those obligations.
- Indemnification. Client shall indemnify, defend, and hold harmless Company, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon:
(a) a claim that, if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder, provided that Client was given prior written notice of such material breach and failed or refused to correct the same within ten (10) business days of receipt of such notice;
(b) a claim that arises out of the negligence or willful misconduct of Client;
(c) Any claimed infringement of intellectual property rights or any other rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses arises due to Client’s action or omission;
(d) Client’s use of any third-party software, hardware, or data product;
(e) Client’s breach of any Agreement;
(f) Any representation made by Client in any Agreement of the General Terms;
(g) Any breach of warranty by Client in any Agreement or the General Terms;
(h) Client’s negligence or gross negligence; or
(i) Any federal, national, state, province, local and other tax or duty arising from the performance of either party’s obligations under an Agreement.
In claiming any indemnification hereunder, Company shall promptly provide Client with written notice of any claim which Company believes falls within the scope of the indemnification, defense and hold harmless covenant above. Company may, at its own expense, assist in the defense if it so chooses, provided that Client shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind Company shall not be final without Company’s written consent, which shall not be unreasonably withheld.
- Non-Solicitation; Non-Raiding.
9.1. During the term of any Agreement and for a period of 24 months following the end of such term, or if litigation is required to prevent Client from violating these restrictions, for 24 months after the entry of any order enforcing Client’s obligations hereunder, whichever is later (the “Restricted Period”):
(a) Client shall not, individually or as owner, agent, employee, consultant, independent contractor, subcontractor, or on behalf of another entity or person, solicit or interfere with the business relationship between Company and any of Company’s suppliers, vendors, subcontractors, or Customers if such solicitation is not for Company’s benefit and is for the purpose of providing Competitive Business. Nothing in this Section 9.1 shall be interpreted to preclude Client from serving in a Non-Competitive Capacity for a Competitive Business.
(b) Client shall not, without prior written approval from the Company, individually or as owner, agent, employee, consultant, independent contractor, subcontractor, or on behalf of another entity or person, solicit, hire as an independent contractor or other vendor relationship, or employ as an employee, or assist any Competitive Business in the such solicitation, hiring, or employment of a Protected Employee, unless, at the time of such solicitation, hiring, or employment: (i) the Protected Employee has been separated from employment by the Company for a period of at least six months, (ii) any such solicitation, hiring, or employment would not otherwise violate any agreements between the Protected Employee and the Company, and (iii) the Protected Employee would serve in a Non-Competitive Capacity for the Client or a Competitive Business. The provisions of this Section 9.1(b) are not intended to apply to any general solicitation or advertisement for employment that is not specifically directed to officers, employees, consultants or contractors employed or retained by Client or Company.
9.2. Client recognizes that the limitations set forth in Section 9.1 protect the legitimate business interests of Company in its Customers and employee relationships, and Client agrees that the above restrictions are reasonable, including the short length of time and the narrow and specific area of business in which competition is limited. Client acknowledges that Company has entered into agreements with Protected Employees prohibiting Protected Employees from working for Client directly and not as an employee of the Company, subject to certain restrictions and limitations. Client also agrees that in addition to any other remedies, including an action for damages, Company also may obtain injunctive relief.
- . Express Warranties; Disclaimer of Warranties.
10.1. Each Party warrants that it has the power and authority to enter into and perform each Agreement to which it is a party.
10.2. Client warrants that:
(a) It has the power and authority to enter into and perform every Agreement to which it is a party;
(b) No action, claim, or charge has been filed against Client, and no person has threatened to file any such action, claim, or charge, which may have any material adverse effect on the subject matter of any Agreement to which Client is a party or on Client’s ability to perform its obligations under the Agreement(s) to which Client is a party;
(c) Client is not Insolvent and will not be rendered Insolvent by any of the transactions contemplated by the Agreement(s) to which it is a party; and
(d) Immediately after giving effect to the consummation of the transactions contemplated by the Agreement(s) to which it is a party, (1) Client will be able to pay its Liabilities as they become due in the usual course of its business, (2) Client will not have unreasonably small capital with which to conduct its business, (3) Client will have assets (calculated at fair market value) that exceed its liabilities, and (4) taking into account all pending litigation and all threatened litigation known to Client, final judgments against Client in actions for money damages are not reasonably anticipated to be rendered at a time when, or in amounts such that, Client will be unable to satisfy any such judgments promptly in accordance with their terms (taking into account the maximum probable amount of such judgments in any such actions and the earliest reasonable time at which such judgments might be rendered) as well as all other obligations of Client. The cash available to Client, after taking into account all other anticipated uses of the cash, will be sufficient to pay all such debts and judgments promptly in accordance with their terms.
10.3. Except as to those express warranties specifically set forth in this Section 10 of the General Terms, to the full extent permissible by applicable law, Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose as to all products and services provided by Company. Company will not be liable for any product or service provided by any third-party unless such product or service is provided pursuant to an Agreement and then only to the extent expressly set forth in that Agreement.
- Limitation of Liability.
11.1. COMPANY WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, REMOTE, SPECULATIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING FROM ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
11.2. COMPANY WILL NOT BE LIABLE FOR ANY ACT OR OMISSION BY ANY OTHER CONTRACTOR ENGAGED, DIRECTLY OR INDIRECTLY, BY CLIENT.
11.3. NOTWITHSTANDING ANY OTHER PROVISION OF THE GENERAL TERMS OR ANY AGREEMENT, NTIVA’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID TO NTIVA BY CLIENT PURSUANT TO THIS AGREEMENT DURING THE 30 DAYS PRECEDING THE EVENT WHICH GAVE RISE TO NTIVA’S LIABILITY.
- Force Majeure. Any Party that is unable to perform any obligation hereunder due to an event of Force Majeure will be excused from such performance to the extent and for the duration of such event; provided, however, that the affected Party provides prompt Notice to the other Party of the occurrence and effect of such event and makes Reasonable Efforts to overcome the adverse effects of the event and resume the performance of its affected obligations as soon as possible.
- Status of Client. Client is not an agent or employee of Company. Nothing contained in the General Terms or any Agreement should be construed as creating a partnership, joint venture, or agency or employment relationship between Company and Client. Neither Client nor its agents have any authority to bind Company in any way.
- Notices. Each notice, demand, request, consent, approval, disapproval, designation, or other communication to any Party (each of the foregoing, a “Notice”) must in writing, signed by an authorized representative of Client, and delivered as follows: (a) if to Client, to the e-mail or physical address of the current point of contact; and (b) if to Company, to
Attention: Legal Department
7900 Westpark Drive, Suite A100
McLean, VA 22102
- Representations. Each Party acknowledges and represents that the Agreement and the General Terms are executed without reliance upon any agreement, promise, statement or representation by or on behalf of any Party, except as set forth in this Agreement and the General Terms, and each Party acknowledges that no other Party nor any agent or attorney of such Party has made any promises, representations or warranties whatsoever, whether expressed or implied, which are not contained in the Agreement or the General Terms, concerning the matters set forth in the Agreement. Each Party represents that the execution and delivery of the Agreement and the General Terms constitutes a legal, valid and binding obligation of such Party.
- Entire Agreement. The General Terms and applicable Agreement contain the entire understanding and agreement between the Parties regarding their subject matter and must not be modified, amended, or assigned except upon express written consent of both Parties. Any attempted modification, amendment, or assignment in violation of this Section16 is void.
- Time is of the Essence. Time is of the essence in each Party’s performance of all obligations under the Agreement and the General Terms.
- Governing Law. The Agreement and the General Terms are governed and must be construed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws provisions.
- Choice of Forum. Any Party commencing against the other Party any legal proceeding (including, without limitation, any tort claim) arising out of, relating to, or concerning the Agreement or the General Terms shall bring that proceeding in the state courts sitting in Fairfax, Virginia or the United States District Court for the Eastern District of Virginia in Alexandria, Virginia. Each Party hereby submits to the exclusive jurisdiction of those courts for the purposes of any such proceeding and waives any claim that any legal proceeding (including, without limitation, any tort claim) brought in accordance with this Section 19 has been brought in an inconvenient forum or that the venue of that proceeding is improper.
- Jury Waiver. The Parties hereby acknowledge that any controversy which may arise under the Agreement or the General Terms would involve complicated and difficult factual and legal issues, accordingly the Parties intentionally waive any right to request a jury trial in any action arising out of, relating to, or concerning this Agreement.
- Attorney’s Fees and Costs. Should any Party breach the General Terms or any Agreement or any warranty contained therein, the non-breaching Party shall be entitled to an award of its costs and reasonable attorneys’ fees expended in any action to seek injunctive or other relief from a court of competent jurisdiction based upon the terms of the Agreement or the General Terms in any case in which it is the substantially prevailing party.
- Severability. If any provision of the General Terms or any Agreement is invalidated by a court of competent jurisdiction, then all of the remaining provisions of the General Terms and the Agreement will continue unabated and in full force and effect.
- No Third-Party Beneficiaries. The Agreement and the General Terms are not intended to confer upon any person other than the Parties any rights or remedies whatsoever.
- Remedies. Client acknowledges that, except a failure to pay amounts due to Company pursuant to an Agreement, any breach of its obligations under any Agreement may result in irreparable injury for which Company will have no adequate remedy at law. Accordingly, if Client breaches or threatens to breach any of its obligations under an Agreement, except an obligation to make a payment to Company, Company will be entitled, without proving or showing any actual damage sustained, to a temporary restraining order, preliminary injunction, permanent injunction, or order compelling specific performance to prevent or cease the breach of Client’s obligations under the Agreement. Company will not be required to post any form of bond in any proceeding seeking injunctive relief, despite any applicable statutory provision to the contrary. Nothing in an Agreement will be interpreted as prohibiting Company from obtaining any other remedies otherwise available to it for such breach or threatened breach, including the recovery of damages.
- Execution in Counterparts; Electronic, Facsmile, or Email Signature. An Agreement may be executed in counterparts, all of which taken together constitute one and the same Agreement. An Agreement may be executed by electronic, facsimile, or email signature and any such signature will be deemed an original.
- No Waiver; Cumulative Remedies. No delay on the part of either Party or failure by that Party to exercise any power, right or remedy under the General Terms or any Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any power, right or remedy or any abandonment or discontinuance of steps to enforce such right, power, or remedy preclude other or further exercises thereof, or the exercise of any other power, right or remedy. The rights and remedies in the General Terms or any Agreement are cumulative and not exclusive of any rights or remedies (including, without limitation, the right of specific performance) which either Party would otherwise have.
- Interpretation. The headings preceding the text of Sections included in the General Terms or any Agreement are for convenience only and shall not be deemed to be part of the General Terms or Agreement or be given any effect in interpreting the General Terms or Agreement.
- Further Assurances. Client shall cooperate fully and execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of the General Terms or an Agreement.