This document is proprietary to SOUTEC US LLC. This material is presented for the purpose of evaluating services and may not be disclosed in any manner to anyone other than the addressee and its employees or authorized representatives.
All assumptions inherent in this document are based upon the nature of support requirements presented to representatives of SOUTEC.
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TERMS AND CONDITIONS TO SERVICE AGREEMENT
1. These terms (“Terms”) apply to Client purchases from SOUTEC US LLC (“SOUTEC”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product“). Client and SOUTEC are sometimes referred to individually in these Terms as a “Party” and collectively as the “Parties.” Client hereby engages and retains SOUTEC to render Services or provide Product, as specifically set forth and limited in the “Statement of Work” or “SOW”, or subsequent Statements of Work, or any work order as agreed among the Parties (each a “Work Order”) under such SOW. Except as otherwise stated therein, subsequent SOWs or Work Orders shall be made a part of and subject to the terms contained herein. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic SOW, or other mutually acceptable Work Order documentation, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes. In the event of any conflict between the Statement of Work and these Terms, the terms of the Statement of Work will prevail over these Terms. All purchases of Products will be governed by Addendum A: Terms Specific to Product Sales Only attached hereto and incorporated herein by reference.
SOUTEC may change these Terms at any time. Using the Services after the changes to these Terms become effective, means Client agrees to the new terms. If Client does not agree to the new Terms, Client must notify SOUTEC in writing of its objection to the new Terms, and SOUTEC has the right to then terminate the Services.
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2. GENERAL REQUIREMENTS & CONDITIONS.
2.1 System. For the purposes of these Terms, “System” means, collectively, any computer network, computer system, peripheral, or device installed, maintained, monitored, or operated by SOUTEC pursuant to and further identified in the SOW. To avoid a delay or negative impact on the provision of Services, during the term of each SOW, Client agrees to refrain from modifying or moving the System or installing software on the System, unless SOUTEC expressly authorizes such activity. SOUTEC will not be held responsible or liable for changes made by client without such authorization.
2.2 Subcontractors. “Subcontractors” means a third-party to whom SOUTEC contracts to provide specified services to complete the Services.
2.3 Authorized Contact(s). Client will designate employee(s) or representative(s) who is(are) authorized to provide direction and approval of Services, and signature on SOWs (“Client Authorized Contact”). SOUTEC will be entitled to rely on any directions or consent provided to SOUTEC by any of Client Authorized Contacts, as indicated in an applicable SOW. If no Authorized Contact is identified in an applicable SOW, then Client Authorized Contact will be the person(s) (i) who signed this Agreement, and/or (ii) who signed the applicable SOW. If Client desires to change Client Authorized Contact(s), Client shall notify SOUTEC of such change in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
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3. CONFIDENTIALITY AND NON-DISCLOSURE.
3.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) during the term of these Terms, in any format, whether oral, written, electronic, or other, 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.
3.2 Client Confidential Information. Client Confidential Information shall include any personally identifiable information or protected health information of Client employees, Client customers, and Client data. Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without a BAA and shall be the sole judge of the necessity for a BAA. Furthermore, Client hereby agrees to defend, indemnify, and hold harmless SOUTEC, any affiliated company, SOUTEC’s respective present and former shareholders, officers, directors, employees, attorneys, agents, predecessors, successors, insurers, assigns, heirs, executors, and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses ( including attorneys’ fees and costs as they occur), brought against, imposed upon, or incurred or suffered by the Indemnitee which in any way related to the failure of Client to properly handle protected health information , due to the absence of any necessary BAA, or failing to notify SOUTEC of the necessity of same.
3.3 Confidential Information. Confidential Information of each Party shall include these Terms, all SOWs, other contract documents, business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes furnished by the Disclosing Party.
3.4 Exceptions. Confidential Information (other than Client data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without the use of or reliance upon any Confidential Information of the Disclosing Party and without any breach of these Terms.
3.5 Protection of Confidential Information. The Receiving Party shall:
(i) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but, in no event, with less than a commercially reasonable degree of care,
(ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms or otherwise in any manner to the Disclosing Party’s detriment, and
(iii) except as otherwise authorized by the Disclosing Party in writing, not disclose or reveal Confidential Information of Disclosing Party to any person or entity other than its employees, directors, officers, agents, subcontractors, and consultants who (a) have a need to know to further the purpose of these Terms; and (b) are subject to legally binding obligations of confidentiality no less restrictive than those contained in these Terms.
3.6 Non-disclosure. Neither Party shall disclose these Terms or any SOW and/or other contract documents to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.
3.7 Compelled Disclosure. If Receiving Party becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information, then Receiving Party shall notify Disclosing Party of the requirement promptly in writing so that Disclosing Party may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Disclosing Party waives, in writing, compliance with the terms hereof, then Receiving Party shall furnish only that portion of the Confidential Information which Receiving Party is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information. 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 reasonable costs of compiling and providing secure access to such Confidential Information.
3.8 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody, or control, or to certify the deletion or destruction of Confidential Information provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy. In the event that return or destruction of Confidential Information is unduly burdensome or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.
3.9 Remedies. The Parties acknowledge and agree that a breach of this Section 3 (Confidentiality and Non-Disclosure) by either Party may cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Disclosing Party shall therefore be entitled, in the event of any actual or threatened violation of this Section 3 by Receiving Party, and in addition to any other remedies available to it, to seek to obtain a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief.
3.10 Duration. The obligations set forth in this Section 3 shall apply during the term of these Terms and for a period of one (1) year thereafter.
4. CLIENT DATA OWNERSHIP AND RESPONSIBILITY. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information, or material proprietary submitted by Client to SOUTEC.
5. INTELLECTUAL PROPERTY. SOUTEC retains all intellectual property rights in the Services any improvements, enhancements, modifications, or derivative works thereof invented or composed in the course of or incident to the performance of the Services, as well as any software, materials, or methods created prior to or after conclusion of any work (“Intellectual Property”). Client acquires no right or interest in any such Intellectual Property.
5.1. Use of Intellectual Property. Client may only use and disclose Intellectual Property in accordance with the terms of this Agreement and applicable SOW and/or other contract documents. SOUTEC reserves all rights in and to the Intellectual Property not expressly granted in this Agreement. Except to the extent expressly permitted by applicable law or without SOUTEC’s prior written approval, Client may not disassemble or reverse engineer any Intellectual Property, decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, or provide a third-party with the results of any functional evaluation or benchmarking or performance tests on the Intellectual Property. Except as expressly authorized in these Terms or an SOW and/or other contract documents, Client may not (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense or other transfer) or (b) operate the Intellectual Property to process the data of third parties. Applicable installation instructions or release notes may contain additional usage restrictions may apply to certain third-party files or programs embedded in the Intellectual Property.
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5.2. License Agreements.
5.2.1 License. Subject to these Terms, SOUTEC grants Client a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Client own internal use. At all times, all software on the System must be genuine and licensed and Client agrees to provide SOUTEC with proof of such licensing upon request. If SOUTEC requires Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of SOUTEC providing Services to Client.
5.2.2 Software Installation or Replication. If SOUTEC is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. Provision of any software to SOUTEC by Client is Client affirmative acknowledgement to SOUTEC that Client has a valid license that permits SOUTEC to perform the Services. In addition, Client will retain the duty and obligation to monitor Client equipment for the installation of unlicensed software unless SOUTEC, in a written statement of work (“SOW”), expressly agrees to conduct such monitoring. Customer will indemnify and hold harmless SOUTEC against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to SOUTEC or any Customer breach of this Section.
5.2.3 Pre-Existing License Agreements. Any software product provided to Client by SOUTEC as a reseller for a third-party, which is licensed to Client under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
5.2.4 EULA. Portions of the Services may require Client to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required to provide the Services to Client, then Client hereby grants SOUTEC permission to accept the EULA on Client behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, SOUTEC is required to comply with a third-party EULA and the third-party EULA is modified or amended, SOUTEC reserves the right to modify or amend any applicable SOW with Client to ensure continued compliance with the terms of the third-party EULA. Client agrees to hold harmless and indemnify SOUTEC against Client violation of any of the terms and conditions included in the subject EULA.
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6. SOUTEC’S EMPLOYEES, AGENTS, AND SUBCONTRACTORS. Client acknowledges that SOUTEC has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors, and independent subcontractors. From the Effective Date (as defined in the SOW) of the last SOW and up to one (1) calendar year after the date of termination of any SOW, Client shall not hire or contract directly or indirectly with any of the SOUTEC employees, agents, or subcontractors who have communicated with and/or worked on any Services for Client. Client and SOUTEC mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the monetary damages that would be caused by a breach by Client of this Section 6. Therefore, Client and SOUTEC mutually agree that in the event of a breach by Client of this Section 6, Client shall pay to SOUTEC as liquidated damages and not as a penalty, an amount equal to One Hundred Fifty Thousand US Dollars (US $150,000.00). This amount is an effort by both parties to properly and reasonably assess the damages that SOUTEC would suffer as a direct result of a breach by Client taking into account the following facts and circumstances: (a) an average employee working for SOUTEC will generate significant net revenue for the SOUTEC and remain employed by the SOUTEC for an extended period of time; (b) SOUTEC will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to the SOUTEC upon such breach is virtually impossible. In light of these circumstances, Client and SOUTEC mutually agree that Section 6 represents reasonable compensation to SOUTEC for the losses that it would incur due to any such breach. Client and SOUTEC further acknowledge and agree that nothing in this paragraph shall limit SOUTEC’s rights to obtain injunctive relief or any other damages including, but not limited to, punitive, consequential, special, or any other damages, as may be appropriate in connection with Client breach of this section.
7. WARRANTY. Services shall be performed in a good, workmanlike, professional, and conscientious manner by experienced and qualified employees of SOUTEC according to the generally accepted standards of the industry to which the Services pertain. For Services containing a deliverable, such Services will be deemed accepted by Client if not rejected in a reasonably detailed writing within five (5) days of submission to Client, or as otherwise identified in the applicable SOW. In the event the Services provided by SOUTEC are not in conformance with this warranty, Client must provide written notice to SOUTEC within five (5) days after the performance of the Services and such notice will specify in reasonable detail the nature of the breach. Upon confirmation of the breach, SOUTEC will use commercially reasonable efforts to take the steps necessary to correct the deficiency at no charge to Client. This is Client’s sole and exclusive remedy for breach of this warranty. If SOUTEC concludes that conformance is impracticable, then SOUTEC will refund all fees paid by Client to SOUTEC hereunder, if any, allocable to such nonconforming Services.
Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by SOUTEC regarding a deliverable shall be deemed null and void if the applicable deliverable is (i) altered, modified or repaired by persons other than SOUTEC, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by SOUTEC, (ii) misused, abused, or not operated in accordance with the specifications of SOUTEC or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than SOUTEC or persons approved or designated by SOUTEC.
Notwithstanding the above, SOUTEC does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery or performance.
The express remedies set forth in these Terms will constitute Client’s exclusive remedies, and SOUTEC’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
EXCEPT FOR THE WARRANTIES MADE BY SOUTEC IN THIS SECTION 7, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” SOUTEC DOES NOT MAKE ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES OR ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT. CLIENT IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES. IN ADDITION, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH SOUTEC CANNOT BE HELD LIABLE.
SOUTEC DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET ANY OF CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any SOUTEC employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever.
8. CLIENT CYBER SECURITY. It is understood that within the Services provided, it is not the intent, nor does SOUTEC provide, any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or monitoring of other cyber threats for Client unless otherwise specified in the SOW. As cyber threats are always evolving, it is strongly recommended that Client engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in Client System. In no event, shall SOUTEC, whether under these Terms, a SOW, or otherwise in connection with any contract document, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
9. REGULATORY COMPLIANCE. Any software or service provided by SOUTEC is not intended to bring Client into full regulatory compliance with any rule, regulation, national standard or requirement. The software, service, or solutions may aid Client’s efforts to achieve regulatory compliance, however, SOUTEC does not provide comprehensive compliance solutions.
10. TELEMARKETING & UNSOLICITED EMAILS. In no event, including the negligent act or omission on its part, shall SOUTEC or its contracted subcontractors, whether under these Terms, a SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Client data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
11. EXTRAORDINARY EVENTS. In no event shall SOUTEC or its contracted subcontractors, whether under these Terms, an SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic, or other physical event.
12. RELEASE AND LIMITATION OF LIABILITY. THIS PARAGRAPH LIMITS THE LIABILITY ARISING UNDER THESE TERMS OR ANY SOW AND IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS. CLIENT ACKNOWLEDGES AND AGREES THAT SOUTEC WOULD NOT ENTER INTO THESE TERMS UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. CLIENT AND ANY OF CLIENT AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASOR PARTIES”) AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, TO RELEASE SOUTEC AND ANY OF SOUTEC AFFILIATES AND EACH OF SOUTEC’S RESPECTIVE AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUBCONTRACTORS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”) FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOUTEC’S TOTAL CUMULATIVE LIABILITY UNDER OR RELATING TO THESE TERMS AND THE SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY, AND NEGLIGENCE), SHALL BE LIMITED IN ALL CASES TO AN AMOUNT WHICH SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID BY CLIENT TO SOUTEC DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE SOW.
13. MUTUAL INDEMNIFICATION AND HOLD HARMLESS. EACH PARTY (EACH AN “INDEMNIFYING PARTY”), TO THE FULLEST EXTENT PERMITTED BY LAW, SHALL, AT ALL TIMES, DEFEND, INDEMNIFY, PAY, SAVE, AND HOLD THE OTHER PARTY AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, SUBCONTRACTORS, CONSULTANTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM EACH AND ANY AND ALL CLAIMS, SUITS, ACTIONS, OR PROCEEDINGS (COLLECTIVELY, THE “CLAIMS”) BROUGHT BY A THIRD PARTY FOR , DAMAGES (AS DEFINED HEREIN) TO THE EXTENT BASED UPON (a) REAL PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING DEATH, SOLELY AND DIRECTLY CAUSED BY THE INDEMNIFYING PARTY IN THE COURSE OF PERFORMING SERVICES UNDER THESE TERMS, (b) ANY BREACH BY THE INDEMNIFYING PARTY OF SECTION 3 BUT ONLY WITH RESPECT TO DISCLOSURE OF CONFIDENTIAL INFORMATION AND TO THE EXTENT THE DISCLOSURE IS THE RESULT OF ACTIONS PREDOMINANTLY ATTRIBUTABLE TO THE INDEMNIFYING PARTY, OR (c) THE GROSS NEGLIGENCE OF THE INDEMNIFYING PARTY. AS USED IN THESE TERMS, DAMAGES REFERS TO LIABILITIES AND DAMAGES INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES, COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES, AND ANY OTHER REASONABLE COSTS OF LITIGATION).
THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE; AND (III) GIVING SOLE CONTROL OF THE DEFENSE AND ANY RELATED SETTLEMENT NEGOTIATIONS TO THE INDEMNIFYING PARTY WITH THE UNDERSTANDING THAT THE INDEMNIFYING PARTY MAY NOT SETTLE ANY CLAIM IN A MANNER THAT ADMITS GUILT OR OTHERWISE PREJUDICES THE INDEMNIFIED PARTY WITHOUT CONSENT.
14. SOUTEC INSURANCE. SOUTEC agrees to maintain sufficient insurance coverage to enable it to meet its obligations under these Terms and by law at amounts SOUTEC deems necessary to protect its interests from such claims, liabilities, or damages which may arise out of the performance of its obligations under these Terms. SOUTEC will maintain at its sole cost and expense at least the following insurance: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury; (b) Business Automobile Liability for hired and non-owned vehicles; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Upon Client request, SOUTEC shall name Client as an additional insured in the Professional Liability policy.
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15. CLIENT INSURANCE.
15.2 Commercial Property Insurance. Client shall secure, at Client’s own cost and expense, Property Insurance for Client equipment.
15.3 Cyber Insurance. Client shall secure and maintain for the duration of the Services, Cyber Liability Insurance to insure Client cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client specific coverage and policy limit requirements. A minimal policy including $1,000,000 per occurrence/aggregate limit is required.
15.4 Mutual Waiver of Subrogation. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD SOUTEC, ITS SUBCONTRACTORS, AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF SERVICE.
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16. TERM AND TERMINATION.
16.2 These Terms. These Terms shall commence on the Effective Date and remain in effect until terminated by either party as provided in this Section 16.
16.3 Termination for Convenience. Either Party may terminate these Terms for convenience at any time upon written notice to the other Party. If there are any pending Statements of Work, termination shall be effective upon the expiration or termination of the last Statement of Work. If there are no pending Statements of Work, termination shall be effective upon receipt of the written notice.
16.4 Termination for Breach. Either Party may terminate these Terms or any individual SOW in accordance with subsection 16.4.1 (in certain circumstances where an opportunity to cure must be provided) or subsection 16.4.2 (in certain circumstances where an opportunity to cure is not available):
16.4.1 Cure. If the other Party breaches any material provision of these Terms or any SOW and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching Party (“Cure Period”). The notice from the non-breaching Party shall specify the basis on which these Terms or SOW is being terminated, including a description of the breach and how the breach can be cured within the Cure Period. If the breaching Party fails to cure the breach within the Cure Period, then termination shall be effective on the thirty-first (31st) day following receipt of such notice by the breaching Party.
16.4.2 No Opportunity to Cure. If: (a) the other Party breaches any representation or warranty in these Terms, subject to the limitation set forth in the SOW; (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 these Terms 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.
16.5 Termination for Financial Insecurity. Either Party may terminate these Terms and all SOWs upon written notice if the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership, or reorganization. Termination shall be effective upon receipt of the written notice.
16.6 Effects of Termination and Offboarding. In the event of termination of Services by either Party and contingent on Client’s full payment of account including offboarding charges, if any, SOUTEC will make reasonable accommodations to transfer Client’s account to Client, Client’s new managed service provider, or other agent authorized by Client (the “Onboarding Provider”). Client shall indemnify and hold harmless SOUTEC, its Subcontractors, and their respective directors, officers, employees, consultants, and agents for any claims or losses resulting from the activities of Client or the Onboarding Provider during the transition period from SOUTEC to the Onboarding Provider, inclusive of when Client obtains access to all super administrator accounts of their infrastructure.
16.7 Survival. Those provisions that by their nature should survive termination of these Terms, will survive termination.
17. SEVERABILITY. If any provision of these Terms is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms shall not impair or render invalid the remainder of the Terms.
18. AMENDMENT. These Terms may not be amended except by a writing executed by an authorized individual of each Party.
19. RELATIONSHIP. The Parties are independent contractors and these Terms do not make the Parties principal and agent, partners, or employer and employee, nor does it create a joint venture. It is further understood that there is no relationship, including, but not limited to, a partnership, joint venture, subcontractor, or other commission-based relationship, between any party that referred SOUTEC or Client to the other party to these Terms.
20. WAIVER. Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies or a waiver by it of any subsequent default by the other Party.
21. FORCE MAJEURE. Neither Party will be liable to the other Party for delays or failures to perform its obligations under this Agreement or any SOW due to causes or circumstances beyond such Party’s reasonable control. Such circumstances include, but will not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, hacking, malware, virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God. Each Party shall use reasonable efforts to mitigate the extent of the aforementioned excusable delay or failure and their adverse consequences, provided however, that should any such delay or failure continue for more than thirty (30) days, any active SOW may be terminated without liability by the non-delaying Party
22. DATA ACCESS/STORAGE. Depending on the Service provided, a portion of Client data may occasionally be accessed or stored on secure servers located outside of the United States. Client agrees to notify SOUTEC if Client company requires SOUTEC to modify standard access or storage procedures.
23. ASSIGNMENT. Client may not assign Client rights or obligations under these Terms without SOUTEC’s prior written consent which shall not be unreasonably withheld.
24. Agreement Binding On Successors. These Terms shall inure to the benefit of and be binding upon the successors and permitted assignees of the respective Parties.
25. Governing Law and Jurisdiction. The validity, construction and interpretation of this Agreement and the rights and duties of the Parties hereto, shall be governed by and construed in accordance with the laws of the State of Florida, excluding its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought either in the federal court in the Southern District of Florida or state courts located in Miami-Dade County, Florida and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
26. Errors. Neither Party shall be held accountable nor incur any additional costs due to discrepancies, errors, omissions in documentation or other information supplied by the other Party.
27. Active Negotiations. Each Party acknowledges these Terms have been the subject of active and complete negotiations, and that these Terms should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
28. Captions. The descriptive headings of the Sections and subsections of these Terms are for convenience only, do not constitute a part of these Terms, and do not affect these Terms’ construction or interpretation.
29. Publicity. Nothing contained in these Terms shall be interpreted so as to permit either Party to publicize its business relationship with the other Party or the nature of the Services performed for Client, without the other Party’s prior written consent.
30. No Third Party Beneficiaries. Except as provided in Section 13 (Indemnification), these Terms do not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties.
31. Entire Agreement. These Terms, including all SOWs and all schedules, attachments and/or other documents attached hereto or incorporated by reference constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in these Terms. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in these Terms are expressly superseded by these Terms. The provisions of these Terms may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into these Terms, neither Party has relied upon any statement, representation, warranty, or agreement of the other Party except for those expressly contained in these Terms. There are no conditions precedent to the effectiveness of these Terms, other than those expressly stated in these Terms.
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ADDENDUM A:
TERMS SPECIFIC TO PRODUCT SALES ONLY
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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, SOW, or other contract documents issued by SOUTEC (collectively, “Quotation”). As used in this Addendum A, the term “Services Sold by Part Number” refers to services, which although ordered from SOUTEC, are procured from and supplied by a third party (i.e., SOUTEC 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 the Addendum A.
1. Product Returns and Warranty Assistance.
(a) Client acknowledges that SOUTEC is reselling all Products purchased by Client and that Products are manufactured and/or delivered by a third party.
(b) To the extent available, SOUTEC 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 SOUTEC 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), if any.
(c) Client acknowledges that the terms and conditions governing the use of Products shall be solely between Client and the manufacturer of such Products.
2. 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 SOUTEC is not liable for any claim or damage arising from such use.
SOUTEC MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. SOUTEC 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.
3. 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.
4. Product Security Interest. Client grants SOUTEC a security interest in the Products detailed in each Quotation, as security for payment in full. Client authorizes SOUTEC to file and/or record any documents it deems necessary to perfect this security interest.
5. 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.
6. 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 thirty (30) days unless otherwise specified in the Quotation. Payment is due thirty (30) days from the date of the invoice. In the event Client chooses to finance its purchase using a third party, Client remains liable for payment to SOUTEC until SOUTEC receives complete payment from such third party. All payments will be made in US currency. Client will pay interest in the amount of one and one-half percent (1.5%) per month, or the maximum allowed by law whichever is lower, on any outstanding balance owed.
7. 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 SOUTEC, Client acknowledges that it is not relying on SOUTEC for any advice or counseling on export control requirements. Client agrees to indemnify, to the fullest extent permitted by law, SOUTEC from and against any fines, penalties and reasonable attorney fees that may arise as a result of Client’s breach of this Section.
8. Cancelation. The purchase of Products may be canceled by Client only upon written approval of SOUTEC and upon terms that indemnify SOUTEC against all losses related to such cancelation.
9. Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM SOUTEC FOR WARRANTY CLAIMS. IN ADDITION, IN NO EVENT WILL SOUTEC’S LIABILITY TO CLIENT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM. SOUTEC 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 SOUTEC 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
