NTIVA GENERAL TERMS AND CONDITIONS
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. Agreements also include Statements of Work, Quotes, or Addendums made to any Agreement.
1.2. “Business Day” means any weekday on which Company’s office is open during Normal Business Hours as defined in Section 1.
1.3. “Client” means any Person that signs an Agreement with Company.1.4. “Company” means Ntiva, Inc. including all its entities, subsidiaries, and affiliates. “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. “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.
1.4. “Company” means Ntiva, Inc. including all its entities, subsidiaries, and affiliates. “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. “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.
1.5. “Normal Business Hours” Company’s Normal Business Hours are in effect from 7:00 am to 7:00 pm EST Monday through Friday. Company will be closed on Holidays and Afterhours and Emergency Support will be available at rates listed in Section 1.6. Holidays include New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas Day.
1.6. “Afterhours and Emergency Support” is On-Site Support outside of Normal Business Hours. Rates for Afterhours and Emergency Support shall be charged at 2 times the Agreement specified On-Site Support Rate. 24 x 7 Monitoring Remote Support is not subject to Afterhours and Emergency Support rates.
1.7. “General Terms” means these Ntiva General Terms and Conditions.
1.8. “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.
1.9. “Invoice” means any invoice issued to Client by Company.
1.10. “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.
1.11. “Party” means Company and/or Client individually and “Parties” means Company and Client together.
1.12. “Person” means any human being or entity including, without limitation, any corporation, limited liability company, partner, or association, whether incorporated or unincorporated association.
1.13. “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.
1.14. “Reasonable Efforts” means, with respect to a given obligation, the efforts that a reasonable person in the promisor’s position would use 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.
2. 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. Client accepts and agrees to be bound by these General Terms by executing an Agreement that references these Terms and by using Company’s services.
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.
3. Payment; Taxes.
3.1. Unless as otherwise provided in an Agreement, Company shall submit invoice to Client for the products, services provided, monthly service fees, projects and/or related expenses and costs incurred by Company and due from Client (the “Charges”). Client shall pay to Company all Charges due in full and without offset within 30 days after the invoice date or on the due date as otherwise specified on the invoice. If paying by Credit Card, a Convenience Fee will be applied to the total invoice amount due.
3.2. Client shall directly pay all taxes that are imposed due to the execution or performance of the Agreement(s), or where appropriate, Client shall reimburse the Company for taxes paid on their behalf. This includes all taxes arising from the license, use, or installation of any third-party software, hardware, or other product. If Client is exempt from otherwise applicable taxes, Client must submit its tax identification number and exemption certificate to Company. Certain services are provided pursuant to the regulations of the FCC and the regulatory body of the state in which Services are provided and the applicable rates, terms and conditions contained in the tariffs on file with state and federal regulatory authorities will apply.
3.3. 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”). The Procurement Deposit shall be applied to the invoice for such third-party software or hardware product. 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. Unless otherwise agreed to by Company, all Procurement sales are final and Company will only accept returns or exchanges of open box items if return or exchange is due to either product defect or Company order error.
3.4. Client shall reimburse Company for all non-local (outside of 50 miles from any Company office) travel and lodging expenses actually incurred by Company.
3.5. If Client, in good faith, disputes the accuracy of the amounts of the Charges, Client shall pay the undisputed amounts and provide Company written Notice, prior to the invoice due date, stating the reasons for the dispute, along with supporting documentation. Due to the nature of computer support and the fact that Company must install configure and maintain software and systems from third parties over which it has no control, Company does not guarantee results for any specific incident. Charges time and materials billed hours will be considered to be legitimate if the following conditions are met: (1) Company assigned a support engineer with appropriate skills to resolve the problem as it was initially reported, (2) The engineer used best efforts to promptly resolve the problem, (3) if the resolution was not readily apparent the engineer escalated the problem to either a more senior engineer at Company or to the software or hardware manufacturer for assistance, and (4) Company has accurately recorded the actual hours worked.
3.6. Any consumption-based subscriptions (such as Microsoft Consumption-Based Azure subscriptions) are invoiced to reflect the prior month actual client consumption. Company does not control such consumption and those amounts cannot be disputed.
3.7. Client hereby waives any right to dispute charges on invoices after the invoice due date or within 30 days of the invoice date whichever is later.
3.8. If Client fails to make any payment of undisputed Charges 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. Further, if payment is returned to Company unpaid for any reason, Client is immediately in non-payment and is subject to a returned check charge of twenty-five dollars ($25).
3.9. Service Holds. If Client is 30 days or more past due on any invoice, Company may, upon ten (10) day written Notice and without invoking termination of the Agreement, suspend Client services until payment is made in full. During the hold period, Client is still responsible for all payment of Charges. If Client incurs two Service Holds during an Agreement Term, Company reserves the right to enforce automatic payment by ACH or Credit Card. Payment by credit card may require additional convenience fees. Neither Service Hold due to nonpayment nor requirement change in payment method constitute a breach in the Agreement by Company.
Service holds may result in lack of access to licensing causing unknown impact to Client’s services. Services and licensing may be deleted if accounts remain suspended past the license manufacturer’s data retention policy. All Software as a Service or licensing provided by Company to Client are subject to end user license agreements by the licensing manufacturer. Consumption based subscriptions (such as Microsoft Azure subscriptions) can be suspended or canceled as requested by the Client or in cases of nonpayment or fraud. A suspended subscription will result in the Client’s inability to sign in and access services. Company is not responsible for data lost or additional costs or reactivation of services due to a Service Hold.
3.10. In the event legal action is instituted to enforce collection, Client further agrees to pay Company’s reasonable attorney(s) and/or collection agency fees, expenses, and costs for such action taken by Company.
4. General Performance Terms.
4.1. Client, at its sole expense, shall obtain all approvals, authorities, licenses, and permits necessary or appropriate to the provision of the services provided by Company.
4.2. 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.
4.3. 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, warranty benefits, 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. All Software as a Service, or licensing provided to Client by Company that Client does not own, are subject to end user license agreements by the licensing manufacturer (hereinafter “EULA”). COMPANY WILL NOT BE LIABLE TO CLIENT WITH RESPECT TO ANY SUCH THIRD-PARTY PRODUCT.
5. Ownership of Intellectual Property.
5.1. Except expressly set forth in any Agreement, Client agrees that the services provided will require the application of proprietary Company owned techniques and methods and therefore agrees that all rights, title, and interest in and to any work products delivered hereunder will be retained by Company, including, without limitation all copyrights, all rights in and to any inventions and designs embodied in the works, all patents or patentable inventions created for the works, and any documents or other materials created by Company. The exception to this will be that any data specific to a Client such as asset lists, server journals, passwords, user accounts, project documentation and the like are owned by Client. The terms of this Section 5 shall survive termination of the Agreement.
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.
6. 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. Subcontractors. Client agrees to allow Company to assign, delegate, subcontract services to third party competent contractors (“subcontractors”) approved by Company. All subcontractors shall perform such services under Company’s direction and control and shall act as independent contractors of Company.
8.1. 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”).
8.2. 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;
c) 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;
d) 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;
e) 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
f) 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.
8.3. 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.
8.4. 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.
8.5. 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.
8.6. The obligations set forth in this Section 8 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.
9. INDEMNIFICATION. CLIENT SHALL FULLY INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY,ITS AFFILITATES AND SUBSIDIARIES, THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS AND ASSIGNS (THE “COMPANY INDEMNITEES”), FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, DAMAGES, LIABILITIES, LOSSES, AND EXPENSES (INCLUDING ANY REASONABLE ATTORNEY FEES, EXPENSES AND COSTS) INCURRED BY OR ASSERTED AGAINST ANY COMPANY INDEMNITEE OF WHATEVER KIND OR NATURE DUE TO:
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 CLIENT’S NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW;
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 OR THE GENERAL TERMS;
G) ANY BREACH OF WARRANTY BY CLIENT IN ANY AGREEMENT OR THE GENERAL TERMS;
H) 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.
10. Non-Solicitation; Non-Raiding.
10.1. 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 10.1 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 10.1(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.
10.2. Client recognizes that the limitations set forth in Section 10.1 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.
11. Express Warranties; Disclaimer of Warranties.
11.1. Each Party warrants that it has the power and authority to enter into and perform each Agreement to which it is a Party.
11.2. Company warrants that:
a) All Services will be performed in a workmanlike manner in accordance with generally-accepted industry standards and practices. If for any reason Client is dissatisfied with an individual consultant provided by Company, Company shall remove such person and replace them as soon as reasonably practicable.
b) For a period of 120 days after the date that any deliverable is delivered to Client, that such deliverable will materially conform to its functional specifications if used in a manner consistent with the conditions for which it was designed.
11.3. Client warrants that:
a) 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;
b) 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
c) 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.
11.4. EXCEPT AS TO THOSE EXPRESS WARRANTIES SPECIFICALLY SET FORTH IN THIS SECTION 11 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, INCLUDING SOFTWARE DEVELOPED HEREUNDER. 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. NO ADVICE OR INFORMATION GIVEN BY COMPANY OR ITS REPRESENTATIVES OR AFFILIATES SHALL CREATE A WARRANTY. COMPANY DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR FREE, NOR COMPLETELY SECURE.
12.1. Client agrees that all equipment provided by Company (the “Company Equipment”) will remain sole property of Company which retains a 100% security interest. Client will not attempt to sell, resale, tamper, troubleshoot, repair, move, add, etc. the Company Equipment without written permission from Company. Should Agreement be terminated by either party, Client agrees to return the Company Equipment listed in the Agreement, or after acquired, to Company within 10 days after the final termination date.
12.2. Client further acknowledges and gives permission to Company to take possession of Company Equipment listed in the Agreement from Client in event of contract termination after 10 day grace period, and agrees to compensate Company for expenses accrued during the recovery in addition to all amounts owed including any amounts owed pursuant to the Agreement.
12.3. Client agrees and understands that Company Equipment is to be maintained completely by Company. Any tampering, repair attempts, or service completed by another party on Company Equipment could result in the immediate termination of the Agreement.
12.4. Client agrees to make all logical and earnest attempts to keep Company Equipment safe, secure, and protected while in their possession. Client agrees to keep current insurance on Company Equipment while in their possession and list Company as an additional loss payee. Client will provide proof thereof to Company by providing a current copy of its insurance declaration sheet. Client further agrees to be responsible for any and all costs for the repair or replacement of Company Equipment while in their possession should it be damaged, stolen, lost, or repaired by an unauthorized third party.
12.5. Should Client default, permission is granted to enter their premises, during Client normal business hours, and remove all Company Equipment, and all efforts to recover such Company Equipment will be deemed consensual and not a trespass. Client agrees to fully cooperate and will not interfere in any way, including but not limited to involving law enforcement. Client acknowledges that the Company Equipment belongs to Company, which retains a 100% Security Interest.
12.6. From time to time, Company will be required to transport, work on, and/or store Client’s equipment and software at a location that is not owned or controlled by Client. (the “Client Equipment”) Client hereby gives Company full authorization to transport, work on, or store Client Equipment and any software contained therein, as needed by Company, during the term of this Agreement. Client further agrees to maintain the risk of loss on Client Equipment and software.
13. Grant of Non-Exclusive License. Company grants to Client a limited, nonexclusive, nontransferable, and non-assignable license (without the right to sublicense) to install and use the services for its internal purposes. CLIENT SPECIFICALLY AGREES THAT THE SERVICES SHALL BE USED ONLY BY CLIENT AND ITS EMPLOYEES OR AGENTS. USE OF THE SERVICES BY THIRD PARTIES WITHOUT THE EXPRESS, WRITTEN CONSENT OF COMPANY IS A VIOLATION OF THIS AGREEMENT.
14. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CLAIM FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, REMOTE, EXEMPLARY, WILLFUL, PUNATIVE, SPECULATIVE, OR THIRD PARTY DAMAGES OR CLAIMS, WHATSOEVER INCLUDING BUT NOT LIMITED TO, ANY DAMAGES FOR THE PROVISION OR NON-PROVISION OF SERVICES, INCLUDING WITHOUT LIMITATION ANY FAILURE OR OUTAGE OF THE SERVICES INCLUDING THOSE RELATED TO 911 DIALING, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS SAVINGS, LOSS FROM BUSINESS INTERRUPTION, OR LOSS OR INACCURACY OF DATA OF ANY KIND, OR LOSS OF BUSINESS INFORMATION ARISING FROM ITS PERFORMANCE OR FAILURE TO PERFORM UNDER ANY AGREEMENT EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
COMPANY WILL NOT BE LIABLE FOR ANY ACT OR OMISSION BY ANY OTHER CONTRACTOR ENGAGED, DIRECTLY OR INDIRECTLY, BY CLIENT.NOTWITHSTANDING ANY OTHER PROVISION OF THESE GENERAL TERMS OR ANY AGREEMENT, IN NO EVENT SHALL COMPANY’S ENTIRE CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THESE GENERAL TERMS OR AGREEMENT(S) EXCEED THE AMOUNT PAID FOR SERVICES TO COMPANY BY CLIENT PURSUANT TO THE AGREEMENT DURING THE 30 DAYS PRECEDING THE EVENT WHICH GAVE RISE TO COMPANY’S LIABILITY. THE LIMITATION OF LIABILTY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
15. Force Majeure. Neither Party shall not be liable for any defaults or delays in performance of its obligations under this Agreement to the extent such default or delay is caused, directly or indirectly, by an act, circumstance, or event:
a) reasonably beyond their control, 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 Agreement(s), except for an obligation of Client to pay any amount to Company.
Force Majeure Events shall include, without limitation, elements of nature or acts of God, fire, flood, lightening, earthquake, labor disputes, changes in law, regulation, or government policy, riots, Civil Unrest and Acts of War, terrorism, epidemics, pandemics, acts or omissions of vendors or suppliers, equipment or software failures, and transportation difficulties.
For any Force Majeure Event, the affected Party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail provided, however, that the affected Party provides prompt Notice to the other Party of the occurrence and effect of such Force Majeure Event and makes Reasonable Efforts to overcome the adverse effects of the Force Majeure Event and resume the performance of its affected obligations as soon as possible.
16. Status of Client. Client is not an agent or employee of Company. Nothing contained in the General Terms or Agreement(s) 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.
17. 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
18. Representations. Each Party acknowledges and represents that the General Terms and Agreement(s) are executed without reliance upon any agreement, promise, statement or representation by or on behalf of any Party, except as set forth in therein 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 therein. Each Party represents that the execution and delivery of the General Terms and Agreement(s) constitute legal, valid and binding obligations of such Party.
19. Entire Agreement. The General Terms and Agreement(s) 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 provided that either Party may assign or transfer an Agreement to any affiliate or to a purchaser of all or substantially all the stock or assets of the business upon advance written notice. This Agreement supersedes all previous and contemporaneous written and oral representations, understandings or agreements related to the subject matter shall prevail notwithstanding any variance with terms and conditions of any order submitted. Acceptance by Company may be conditioned upon the satisfactory completion of a credit check. Any attempted modification, amendment, or assignment in violation of this Section19 is void.
20. Time is of the Essence. Time is of the essence in each Party’s performance of all obligations under the Agreement.
21. Governing Law. The General Terms and Agreement(s) are governed and must be construed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws provisions.
22. 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 General Terms and Agreement(s) 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 22 has been brought in an inconvenient forum or that the venue of that proceeding is improper.
23. JURY WAIVER. THE PARTIES HEREBY ACKNOWLEDGE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THE GENERAL TERMS AND AGREEMENT(S) 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 THE GENERAL TERMS AND ANY AGREEMENT(S).
24. Attorney’s Fees and Costs. Notwithstanding any other provision of the General Terms or any Agreement, should any Party breach the General Terms or Agreement(s) 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 General Terms and Agreement(s) in any case in which it is the substantially prevailing party.
25. Severability. If any provision of the General Terms or any Agreement is invalidated by a court of competent jurisdiction, then all the remaining provisions of the General Terms and any Agreement(s) will continue unabated and in full force and effect.
26. 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.
27. 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 any 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.
28. Execution in Counterparts; Electronic, Facsimile, 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.
29. 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.
30. Interpretation. The headings preceding the text of Sections included in the General Terms or Agreement(s) are for convenience only and shall not be deemed to be part of the General Terms or Agreement(s) or be given any effect in interpreting the General Terms or Agreement(s).
31. 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 Agreement(s).