Each Statement of Engagement and/or Quotation (as defined herein) issued by ENVISION INFORMATION TECHNOLOGIES, LLC (“EIT”) is an offer to sell Products and/or Services (as herein defined) to purchaser (“Client”) and includes, is governed by, and Client agrees to be bound by, this Master Services Agreement (the “Agreement”). EIT’s Statement of Engagement and/or Quotation and this Agreement shall be deemed accepted by Client upon EIT’s receipt of a purchase order or a signed Statement of Engagement. Acceptance of EIT’s Statement of Engagement and/or Quotation and this Agreement is expressly limited to the terms contained in the Statement of Engagement and/or Quotation and this Agreement.
A. Client desires to engage EIT to perform various services for Client from time to time as described in a “Statement of Engagement.”
B. The scope of the Services may initially be described in Exhibit A, as referenced in Section 2.1 (Scope of Services) of this Agreement, or as described in Section 11 (Statement of Engagement).
C. Client and EIT are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties”.
Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Engagement, unless the language or context requires otherwise. SOE-specific definitions, if any, shall be included in the applicable SOE, and shall apply only with respect to such SOE. As used in this Agreement:
“Agreement” means this Master Services Agreement and all Statements of Engagement, schedules, and attachments attached hereto or to or otherwise made a part of this Agreement.
“Confidential Information” means any information furnished by Disclosing Party to Receiving Party during the term of this Agreement, including, without limitation, pricing, methods, processes, financial data, lists, statistics, software, systems or equipment, programs, research, development, strategic plans, operating data, or related information of each of the parties and/or its or their customers and suppliers, concerning past, present, or future business activities of said entities. This Agreement is the Confidential Information of EIT. All other Confidential Information must be clearly designated as “Confidential.” Information provided orally will be considered confidential only if a written memorandum of such information clearly designated as marked “Confidential” is delivered to Receiving Party within thirty (30) days of the Disclosure. As to any particular Confidential Information, “Disclosing Party” means the Party disclosing the Confidential Information and the “Receiving Party” means the Party receiving the Confidential Information.
“Content” means information, software, Client Data, and other data including, without limitation, HTML files, scripts, programs, recordings, sound, music, graphics, and images that Client or any of its Users create, install, upload, or transfer in or through a Client device or Client’s network.
“Client Components” means the hardware, software, other products, and other Content including, without limitation, those specified in a SOE as being provided by Client.
“Client Data” means all data and information about Client’s business(es), customers, employees, operations, facilities, products, markets, assets or finances that EIT obtains, creates, generates, collects, or processes in connection with its performance of Services and is stored in any Client device or on the Client network.
“Deliverable IP Rights” means that, except as otherwise noted in the SOE, any Deliverable IP Rights shall be retained and owned by EIT (or to the extent EIT so designates, a third-party). To the extent Deliverable IP Rights are provided to Client, EIT hereby grants to Client, subject to EIT’s discretion to protect such rights, a nonexclusive, nontransferable worldwide license under the Deliverable IP Rights to copy, use, distribute, display, and prepare derivative works of the Deliverables solely for Client’s internal business operations and for communications with EIT. Client shall not reverse engineer or resell any Deliverable IP Rights.
“Deliverables” is defined as the items provided to Client by EIT (Services, materials, manuals, license arrangements, etc., but excluding Products, as defined below, and third-party software purchased from a third party by EIT or Client and resold, licensed or leased to Client) in performance of the Services and as described more specifically in each applicable SOE.
“Disclosure” means the release, publication, or dissemination of Confidential Information by a Party and excludes the release, publication, or dissemination of Confidential Information by a third party.
“Effective Date” means, the first date a Statement of Engagement or Quotation is accepted by Client.
“Hardware” shall mean specific hardware purchased by or for Client and paid for by Client, directly or through EIT, which is intended to be owned and retained by Client as stated in any specific SOE.
“PCR” means a project change request (change order) signed by both Parties authorizing a change in the scope of the Services.
“Products” means any order for software, hardware, or Resold Services, and any materials delivered and being part of the hardware or software (“Products”) made by Client pursuant to a quotation issued by EIT (“Quotation”). Orders for Products are governed by this Master Services Agreement and Addendum A, “Terms Specific to Product Sales Only” attached hereto and incorporated herein by reference.
“Required Consents” means any consents, licenses, or approvals required to give EIT, or any person or entity acting for EIT under this Agreement, the right or license to access, use, and/or modify in electronic form and in other forms, including without limitation, derivative works, the Client Components and Content.
“Services” means the information technology services to be delivered by EIT under this Agreement as specified in any Statement of Engagement and does not include Third Party Services.
“Software” shall mean specific software purchased by or for Client and Paid for by Client, directly or through EIT, which is intended to be owned and retained by Client as stated in any specific SOE.
“Statement of Engagement” or “SOE” shall have the meaning ascribed to it in Section 11.1 (Agreement Structure).
“Third Party Services” means the information technology services to be delivered by a third party under this Agreement as specified in any Statement of Engagement.
2.1 Scope of Services. Subject to the terms and conditions in this Agreement and the applicable SOE, EIT will use commercially reasonable efforts to perform the Services described in the applicable Statements of Engagement. EIT shall provide to Client the Services (which may include tangible property) described in the agreed upon SOE, which may initially be attached hereto as Exhibit A. The Parties also anticipate adding additional SOEs, which shall be subject to this Agreement. To the extent a work order is labeled as a “statement of work”, “Envision as a Service Operational Support Agreement”, or “EaaS Agreement”, such work order shall be considered a SOE hereunder. To the extent that EIT performs the Services on Client’s premises, EIT, and its employees and agents, and other personnel will obey all reasonable instructions and directions issued by Client as well as all premises and security policies.
2.2 Designated Contact Persons. Each Party shall designate an individual who will be a primary point of contact and will have the authority to act and make decisions in all aspects of the Services, including PCRs, on behalf of their company. Client shall make available all technical matter, data, information, operating supplies, and computer system(s), as reasonably required by EIT. Either Party may change its designated contact person by providing written notice to the other Party.
2.3 Changes. In the event Client wishes to add additional programs, applications, network devices of any kind, or otherwise requests a change in the scope of the Services, then Client shall present its request for such alterations of its network to EIT for scoping. No alterations will be permitted under this Agreement without a signed PCR.
3.1. Fees. Monthly recurring charges for managed services shall be invoiced on the first of each month and due within fifteen (15) days after the invoice date. For all non-prepaid Quotations, fees shall be invoiced monthly and shall be due and payable within fifteen (15) days after the invoice date. Professional services invoices shall be invoiced monthly and shall be due and payable within fifteen (15) days after the invoice date. In the event of a dispute, clients have the right to contest the invoice within thirty (30) days of the invoice date. During this dispute period, the undisputed amounts remain due as per the regular payment terms. Client agrees to pay a late payment charge at the rate of one and one-half percent (1.5%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or portion thereof) that any payment is thirty (30) days past due. EIT may apply any payment received to any delinquent amount outstanding. Without limiting the foregoing, if Client’s account remains unpaid for thirty (30) days or more past the due date, EIT reserves the right to suspend all Services without further notice until all such overdue amounts (and any applicable interest charges, as specified above) are paid. Upon payment of all outstanding fees due, EIT shall, to the extent possible, restore the Services after validating that all components to be monitored and/or managed under any applicable SOE and associated proposals and agreements comply with EIT’s level of security, updates, and best practices. EIT’s right to suspend Services under this Section is in addition to EIT’s rights under equity or law. In the event Services are suspended, Client acknowledges that Client’s IT systems will not function, any software licensing acquired from EIT will be terminated, and Client may irretrievably lose data. In such an event, Client hereby waives, releases, and forever discharges and agreed to hold EIT harmless from any and all claims for damages for any and all damages which Client and/or Client’s officers, directors, employees, customers, agents and/or contractors may have, or which may hereafter accrue, against EIT as a result of or in any way directly or indirectly related to the suspension of Services. In addition, Client agrees to reimburse EIT for all expenses incurred in connection with the collection of amounts payable hereunder, including contingent fees, court costs, and reasonable attorneys’ fees. All deliverables will be the property of EIT until payment in full is received.
3.2 Reimbursable Expenses. Except as may otherwise be stated in the applicable SOE, Client agrees to reimburse EIT for all reasonable and customary out-of-pocket expenses incurred by EIT, including, but not limited to, airfare, rental car, mileage, tolls, and lodging expenses, in connection with the performance of the Services and providing the Product provided. Reimbursable expenses shall be invoiced on a monthly basis. Upon request by Client, EIT shall provide copies of documentation for such expenses. Client agrees to reimburse EIT upon receipt of an invoice based on terms as set forth in this Section 3 (Fees and Expenses).
3.3 Taxes. Unless otherwise provided in a SOE, fees and expenses incurred do not include taxes. Client shall be responsible for all sales, use, property, value added, withholding, or other taxes and duties. Client shall pay all taxes levied and duties assessed by any authority based upon this Agreement, excluding any taxes based upon EIT’s income. This provision shall not apply to any taxes for which Client is exempt and for which Client has furnished EIT with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.3.1 Industry Standards. The Services shall be performed by qualified personnel of EIT in a good, professional, conscientious and workmanlike manner according to the generally accepted standards of the industry to which the Services pertain. Services will be deemed accepted by Client if not rejected for non-conformance in a reasonably detailed writing submitted to EIT within five (5) days of performance of Services. Upon confirmation of the non-conformance, EIT will use commercially reasonable efforts to take the steps necessary to correct the non-conformance at no charge to Client. This is Client’s sole and exclusive remedy for breach of this warranty.
4.3.2 Service Levels. The Services will meet the technical standards of performance or service levels, if any, set forth in the applicable SOE. Client’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable SOE.
4.3.3 Staffing Placement Services. EIT warrants that any consultant provided to Client will have the qualifications and hold the certifications represented to Client by EIT. EIT makes no other representations or warranties with respect to the staffing placement Services to be provided.
Client is not authorized to make, and Client shall not make, any representations or warranties on behalf of EIT to any third party. Client shall be solely responsible and liable for any representations or warranties that Client makes to any third party regarding EIT, the Services, or any other aspect of this Agreement. EIT makes no representations or warranties with regard to the Third Party Services and passes through to Client the terms and conditions for the services delivered by a third party
4.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4 (REPRESENTATIONS AND WARRANTIES), NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF EIT IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF EIT. 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, SUBJECT TO INTERRUPTION OR DISRUPTION, AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH EIT CANNOT BE HELD LIABLE.
5.1 Limit on the Types of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (AND EIT’S SUPPLIERS AND LICENSORS WILL NOT) BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY CLAIMING THROUGH A PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION, OR THEFT OF DATA BY ANY PERSON OR PARTY OR INTERRUPTION OF BUSINESS) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT, ANY SOE, OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, STRICT LIABILITY AND NEGLIGENCE), EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, b) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (c) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOE FAILS OF ITS ESSENTIAL PURPOSE
5.2 Limit on the Amount of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EIT’s TOTAL CUMULATIVE liability UNDER OR RELATING TO THIS AGREEMENT 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 EIT during THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF the first event giving rise to liability FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND under the applicable SOE.
5.3 Non-Managed Systems. EIT shall not be liable for any damage caused by services, systems, software, or other components that neither it nor its employees, agents or subcontractors furnish or manage pursuant to this Agreement.
5.4 Applicability. The terms in this Section 5 (Limitation of Liability) shall apply to the maximum extent permitted by applicable law. If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions or capping its liability for certain acts or omissions, then the terms in this Section 5 (Limitation of Liability) shall apply to not limit liability for such acts and omissions, but will apply for all other acts and omissions.
5.5 Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 5 (LIMITATION OF LIABILITY) REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CLIENT FOR THE SERVICES WOULD HAVE BEEN HIGHER
5.6 Third Party Intrusion. Provided EIT substantially meets its obligations to perform the Services in a good and workmanlike manner consistent with then current industry best practices, EIT shall not be liable to Client or any other third-party for the unauthorized intrusion into any server, network, end-user device, cloud, platform, or similar process or system in the technology environment, now or in the future (“Technology Environment”), of EIT, Client, or any customer, agent, provider, supplier or any other third-party to Client or EIT (“Hacker”). EIT and Client understand that despite best practices by all Parties and others, a Hacker may be able to infiltrate the Technology Environment of the Parties in order to disable, modify, exfiltrate, or contaminate such Technology Environment and their contents. The Parties intend to, and do hereby, waive claims against each other resulting from a Hacker, provided that the Party receiving the benefit of any such intended waiver, was observing and practicing then current industry best practices.
6.1 Indemnification by EIT. Subject to the terms and conditions in this Agreement, EIT will, at its cost, (i) defend Client and its officers, directors, shareholders, employees, agents, successors and assigns (collectively the “Client Indemnified Parties”) from and against any claim, suit, action, or proceeding (threatened or otherwise) (each a “Claim”) made or brought by a third party against Client Indemnified Parties to the extent based upon (a) any breach by EIT of any of it representations and warranties under Section 4.1 (Representations and Warranties. By Each Party); (b) real property damage or personal injury, including death, solely and directly caused by EIT’s employees or contractors in the course of performance under this Agreement; (c) any breach by EIT of Section 7 (Confidentiality) to the extent the Disclosure is the result of actions predominantly attributable to EIT; (d) any uncured breach by EIT of its obligations under Section 9 (Information Security); and (e) any allegation that Client’s receipt of the Services under this Agreement infringes any of such third party’s copyrights, or any such third party’s patents issued in the United States as of the Effective Date, or misappropriates any of such third party’s trade secrets (each an “IP Claim”); and (ii) EIT shall pay any final award of damages (or settlement amount approved by EIT in writing and) paid to the third party that brought any such Claim.
6.2 Indemnification by Client. Client will indemnify, defend, and hold harmless EIT and its officers, directors, shareholders, employees, agents, successors and assigns from any and all liabilities, damages, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claim, suit or proceeding (threatened or otherwise) made or brought by a third party against EIT or its officers, directors, shareholders, employees, agents, successors and assigns based upon (a) any breach by Client of any of it representations and warranties under Section 4 (Representations and Warranties); (b) real property damage or personal injury, including death, directly caused by Client; (c) any breach by Client of Section 7 (Confidentiality) to the extent the Disclosure is the result of actions predominantly attributable to Client; (d) any breach by Client of its obligations under Section 10.2 (Required Consents) or Section 10.5 (Encryption); (e) any breach by Client of Section 25 (Export Compliance); and (f) any claim that EIT’s possession, storage, or transmission of the Content or possession or use of the Client Components, infringes on, violates, or misappropriates any patent, copyright, trademark, service mark, trade secret, or other intellectual property or proprietary rights of a third party.
6.3 Procedure. A Party (or other person) having a right to defense and indemnification under this Agreement (“Indemnified Party”) that desires such indemnification shall tender to the Party having an obligation to defend and indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly in writing of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 6 (Indemnification). The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Claim. In no event shall either Party make any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.
6.4 Mitigation for IP Claims. At any time after notice of an IP Claim, or if EIT believes there is a basis for an IP Claim, EIT has the right, at EIT’s sole option and expense, to either (a) procure the right for Client to continue receiving the Services as provided in this Agreement, or (b) replace or modify the applicable Service with a service that has substantially similar functionality and that EIT believes would not be subject to the IP Claim. If EIT deems (a) or (b) not feasible or not commercially reasonable, EIT has the right to terminate the applicable SOE. In the event of any such termination, EIT will refund to Client the unused portion of any amounts paid by Client for the affected Service. In addition, upon any such termination, Client shall cease the use of the applicable Service.
6.5 Limitations as to IP Claims. Notwithstanding anything to the contrary, EIT shall have no obligations or liability under Section 6.1 (Indemnification by EIT) if the IP Claim is based upon, arises out of, or is related to, in whole or in part, or if any of the following apply: (a) the combination of the applicable Service with any product, software, solution, or service not entirely developed and provided by EIT, (b) use of the applicable Service outside the scope of the licenses or rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement, (c) Client’s failure to comply with EIT’s direction to cease any activity that in EIT’s reasonable judgment may result in an IP Claim, (d) any allegation by a third party that does not specifically reference a EIT Service, or that does not reference a feature of function of a EIT Service, or (e) any IP Claim for which Client does not promptly tender control of the defense thereof to EIT.
6.6 Sole Remedy. THE TERMS IN THIS SECTION 6 (INDEMNIFICATION) SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND EIT’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6 (INDEMNIFICATION), EIT SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CLIENT FOR THIRD PARTY CLAIMS.
7.1. Restrictions on Use; Non-Disclosure. Receiving Party agrees that it will use the same care and discretion to avoid Disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish, or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Disclosing Party, Receiving Party agrees that it will not: (a) use the Confidential Information of Disclosing Party for any purpose other than the purpose for which Disclosing Party disclosed the information; or (b) disclose or reveal Confidential Information of the Disclosing Party to any person or entity other than its employees, directors, officers, agents, and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement.
7.2 Exceptions. The obligations set forth in Section 7.1 (Restrictions on Use; Non-Disclosure) shall not apply to Confidential Information that (a) was in the public domain at the time it was disclosed, (b) was known to the Receiving Party at the time of disclosure through no wrongful act of the Receiving Party, (c) was lawfully and independently developed by the Receiving Party without any use of or access to the Confidential Information, or (d) becomes publicly known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement.
7.3 Obligations. The Receiving Party agrees (a) to use commercially reasonable efforts to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information, (b) not to divulge any such Confidential Information or any information derived therefrom to any third person, and (c) not to make any use of any such Confidential Information other than as may be required to perform Services under this Agreement. The Receiving Party may disclose the Confidential Information to its direct and indirect parents, subsidiaries and affiliates and its and their respective directors, officers, members, partners, employees, advisors and representatives (collectively, the “Permitted Recipients“) who need to know the Confidential Information for the purposes of the Services, provided that such Permitted Recipients are legally obligated to the Receiving Party under a written agreement with terms substantially similar to the terms of this Section 7 (Confidentiality) to hold such information in confidence and to use such information only for the purposes expressed herein. Receiving Party agrees, at its sole expense, to take all reasonable measures to protect the Confidential Information from prohibited or unauthorized disclosure and/or use and shall be liable for any breach of this obligation by Permitted Recipients.
7.4 Compelled Disclosures. Nothing in this Agreement shall obligate either Party to refrain from disclosure of Confidential Information to the extent such disclosure is required by law, provided the Receiving Party shall use its reasonable efforts to give prior prompt notice in writing of such disclosure to the Disclosing Party, unless prohibited by law from doing so, so that the Disclosing Party may seek a protective order or other appropriate remedy from a court of competent jurisdiction, and the Receiving Party will reasonably cooperate with the Disclosing Party in such efforts to contest such disclosure. If a protective order or other remedy is not obtained, or if Disclosing Party waives in writing compliance with the terms hereof, then, the Receiving Party agrees to furnish only that portion of the Confidential Information that is legally required to be disclosed and will exercise reasonable efforts to obtain confidential treatment for that part of the Confidential Information being disclosed.
7.5 Return and Disposal of Confidential Information. Upon the expiration or earlier termination of this Agreement or upon Disclosing Party’s request at any time, the Receiving Party shall return all originals and copies of any Confidential Information to the Disclosing Party. If return is impossible as to any portion of the Confidential Information, then Receiving Party shall promptly certify to Disclosing Party that all such Confidential Information of Disclosing Party, including all copies thereof, has been totally and permanently destroyed. EIT will return to the Client all Client Data in its possession at the date of termination in its then-existing format and on its Client-supplied media, however, EIT may keep a copy in accordance with its record retention policy. Any conversion of format or media performed by EIT in order to discharge its obligations under this Section 7 (Confidentiality) shall be at Client’s expense.
7.6 Remedies. The Parties acknowledge and agree that a breach of this Agreement 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 may be inadequate and that Disclosing Party shall therefore be entitled and to seek to obtain a temporary restraining order and injunctive relief against the other Party from a court of competent jurisdiction, without posting a bond or other security, to prevent any violations thereof, and, in addition , any other appropriate equitable relief.
7.7 Duration. The obligations set forth in this Section 7 (Confidentiality) shall apply during the term of this Agreement and for a period of one (1) year thereafter.
8.1 Services. EIT retains all right, title, and interest in the Services and in all improvements, enhancements, modifications, or derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, and trademark. The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and Client agrees not to disclose such information to any third party without EIT’s prior permission. EIT grants Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of the applicable SOE to use the Services.
8.2 Content. EIT acknowledges and agrees that all Content, including copyrights, trademarks, database rights, and other intellectual property contained in such Content are owned or licensed by Client. Client grants EIT a license to store, record, transmit, and display the Content solely to perform EIT’s obligations under this Agreement.
8.2 Content. EIT acknowledges and agrees that all Content, including copyrights, trademarks, database rights, and other intellectual property contained in such Content are owned or licensed by Client. Client grants EIT a license to store, record, transmit, and display the Content solely to perform EIT’s obligations under this Agreement.
8.3 Application Development. Client has exclusive ownership of all software, documentation, whether written or readable by machine, created by EIT for Client in the performance of application development Services hereunder (Work Product), including all copyrights, patents, patentable work product and other intellectual property rights in, to and under the Work Product. EIT does hereby assign to Client any rights it may have or claim to said Work Product and shall perform all reasonable acts to confirm ownership in Client, including execution of documents and/or patent and copyright applications at the expense of Client. EIT shall not use such concepts that can be manifested as Work Product for any purpose other than providing the Services hereunder and shall not disclose such concepts or Work Product to any other Party.
9.1 Security Measures. EIT will maintain commercially reasonable security measures that are designed to (a) ensure the security of Client Data; (b) protect against any anticipated threats or hazards to the security or integrity of Client Data; and (c) protect against any unauthorized access to or use of the Client Data.
10.2 Required Consents. Client shall obtain and keep in effect all Required Consents necessary for EIT to perform all of its obligations as set forth in this Agreement including without limitation, those with internet circuit providers and mobile device carriers. Upon request, Client will provide to EIT evidence of any Required Consent. EIT will be relieved of its obligations to the extent that they are affected by Client’s failure to promptly obtain and provide to EIT any Required Consents.
10.5 Encryption. Client shall encrypt at the application level Confidential Information, Client Data, and all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Client’s contractual obligations to others. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated thereunder) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated thereunder).
11.1 Agreement Structure. This Agreement contains general contractual terms for all information technology services to be provided by EIT. The specific information technology services that EIT will provide, applicable pricing and payment terms, service level agreement, if any, and other transaction-specific provisions will be agreed upon through statements of work (each a “Statement of Engagement” or “SOE”). Each SOE shall be signed by both Parties and will be deemed to incorporate all of the provisions of this Agreement by reference. Each SOE will be a separate agreement between EIT and Client.
11.2 Order of Precedence. In the event of any conflict between the terms of any particular SOE and this Agreement, the provisions of this Agreement shall control. The Parties may specify in the applicable SOE that a particular provision of the SOE is to supersede a provision of this Agreement, in which case the superseding SOE provision(s) shall be applicable only to such SOE and shall be effective for such SOE only if such provision(s) expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision(s) supersedes the conflicting or inconsistent provision in this Agreement. Unless expressly agreed to in writing by EIT, EIT rejects any terms and conditions contained in Client’s documents (e.g. purchase orders or other order documents).
12.2 Termination for Convenience. Either Party may terminate this Agreement for convenience at any time upon 30 days’ written notice to the other Party. If there are any active Statements of Engagement, termination shall be effective upon the expiration or termination of the last Statement of Engagement. If there are no active Statements of Engagement, termination shall be effective upon receipt of the written notice.
12.3 Termination for Breach. Either Party may terminate this Agreement or any individual SOE in accordance with subsection 12.3.1 (Cure) (in certain circumstances where an opportunity to cure must be provided) or subsection 12.3.2 (No Opportunity to Cure) (in certain circumstances where an opportunity to cure is not available).
12.3.1 Cure. If the other Party breaches any material provision of this Agreement or any SOE and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching Party (“Cure Period”), then a Party can provide notice of termination. The notice from the non-breaching Party shall specify the basis on which the Agreement or SOE 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.
12.3.2 No Opportunity to Cure. If: (a) the other Party breaches any representation or warranty in this Agreement, subject to the limitation set forth in Section 4.3.2 (Service Levels); (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), then a Party can provide notice of termination. The notice from the non-breaching Party shall specify the basis on which the Agreement or SOE is being terminated, including a description of any breach. Termination shall be effective immediately upon receipt of such notice by the breaching Party.
12.4 Termination for Financial Insecurity. Either Party may terminate this Agreement and all SOEs 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.
12.5 Final Payment. Within thirty (30) days after any termination of this Agreement or individual SOE, EIT will submit to Client a final itemized invoice for all fees and expense due and owing by Client. Client shall pay the invoice in accordance with Section 3.3 (Taxes).. Notwithstanding any termination of this Agreement, the Client acknowledges and agrees that any annual or multi-year product purchase commitments remain in effect and binding. The Client must fulfill all payment obligations according to the original terms agreed upon at the time of purchase for any products or services with such annual or multi-year agreements. This obligation shall persist irrespective of the reasons for the termination of this Agreement. These payment obligations shall override any conflicting cancellation terms in the Client’s posted terms and conditions or any other prior agreements between the Client and EIT.
12.6 Effects of Termination. Upon termination of this Agreement or an individual SOE and EIT’s receipt of payment by Client of the final invoice described in Section 12.5 (Final Payment), EIT will, to the extent applicable, exercise reasonable efforts and cooperation to effect an orderly and efficient transition of Services to any successor provider identified by Client. For the avoidance of doubt, EIT shall have no obligation to cooperate in any transition and shall have no obligation to supply any information to Client, including, without limitation, user IDs, passwords, etc., until all outstanding fees, including any early termination fees, are paid to EIT. Any transition services requested by Client shall be provided by EIT on a time and material basis. EIT reserves the right to require prepayment for any transition services.
12.7 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination. Without limiting the generality of the foregoing statement, Sections 4 (Representations and Warranties); 5 (Limitation of Liability); 6 (Indemnification); and 8 (Ownership Rights) shall survive any termination of this Agreement.
This Agreement, including all Addenda, SOEs, 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 this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement are expressly superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than those expressly stated in this Agreement.
In the event that any of the provisions of this Agreement are declared or held by a court of competent jurisdiction to be invalid, illegal or unenforceable the unaffected portions of this Agreement shall be unimpaired and remain in full force and effect. In the event of such a ruling, the Parties shall negotiate in good faith a substitute for the provision declared invalid, illegal or unenforceable.
The validity, construction and interpretation of this Agreement and the rights and duties of the Parties hereto, shall be governed and construed in all respects by the laws of the state of Wisconsin, excluding its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought either in the state courts located in Dane County, Wisconsin or in the federal court in the United States District Court for the Western District of Wisconsin.
Each Party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, cyber liability, and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement. For the avoidance of doubt, each Party is solely responsible for insuring its personal property wherever located and each Party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite Party.
In the event the Parties to this Agreement have a dispute that is resolved as part of a lawsuit, then the non-prevailing Party shall pay the actual attorney fees and costs of the prevailing Party as part of the judgment in favor of the prevailing Party.
Each notice, request, demand, or other communication (“Notice”) by either Party to the other pursuant to this Agreement shall be in writing, and, except for routine documentation and correspondence, shall be (a) personally delivered, (b) sent by an overnight commercial courier, charges prepaid, and shall be deemed to be delivered on the first business day following the date of sending by overnight commercial courier or (c) sent by email (but such electronic communication must be acknowledged by the recipient or (d) sent by first-class certified or overnight delivery mail, postage prepaid:
If to EIT:
Envision Information Technologies, LLC
Attn: General Counsel
8040 Excelsior Drive, Suite 402
Madison, WI 53717.
If to Client, then to the last known address of the Client.
A Party may change its address for notices by sending a change of address notice using this notice procedure.
Any modification of this Agreement will be effective only if in writing and signed by both parties. The failure of either Party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights and the obligations of the Party with respect to such future performance and shall continue in full force and effect.
Neither Party shall be liable to the other Party for any delay or failure to perform, which delay or failure is due to causes or circumstances beyond its control and without its fault or negligence, including acts of civil or military authority, national emergencies, labor strikes, fire, flood or catastrophe, acts of God, insurrection, war, riots or failure of transportation or a general and/or city-wide power failure. 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, the Agreement may be terminated without liability by the non-delaying Party.
EIT shall have the right to perform any services (including without limitation the same kinds of services provided to Client hereunder) for others during the term of the Service provided hereunder and in subsequent SOEs, and Client shall have the right to engage others to provide any services to Client (including without limitation the same kinds of services provided to Client hereunder and in subsequent SOEs).
The parties hereby covenant and agree that during the term of this Agreement and for a period of one year following the expiration or the termination of the Agreement, neither Party shall hire or solicit for employment, without the other Party’s prior written consent, any person employed then by the other Party if such person became known to the soliciting Party through the relationship established pursuant to this Agreement. This prohibition will not apply to job opportunities posted on recruiting websites or in other publications in which one Party seeks to find candidates for open positions (absent direct solicitation and/or recruitment.
The Parties hereto are independent contractors and does not operate as an employee, agent, joint venture, or partner of the other Party. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Parties. EIT acknowledges that EIT and EIT’s employees shall not be eligible to receive any employment benefits provided by Client to its employees. Pursuant to and during the term of this Agreement, EIT may, from time to time, request that the Client execute such instruments and documents appointing EIT an agent of the Client for a specific limited purpose. An officer of Client shall, in a timely manner, execute and deliver to EIT or the third party requiring the same, such instruments designating EIT as Client’s agent to the extent required by EIT to manage and perform the Services provided by it under this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall constitute one Agreement.
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 shall be solely responsible for such compliance with respect to Client Data and the Content that it provides to EIT.
Neither party may assign its rights or delegate its duties or obligations under this Agreement without the other party’s prior written consent, such consent which shall not unreasonably be withheld. Notwithstanding the forgoing, EIT may assign this Agreement without the prior written consent of Client in connection with the acquisition of EIT or the sale of all or substantially all of its assets.
This Agreement shall inure to the benefit of and be binding upon the successors and permitted assignees of the respective Parties.
EIT may engage subcontractors to perform services under any SOE. Except as provided herein, EIT shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
The descriptive headings of the Sections and subsections of this Agreement are for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation.
Nothing contained in this Agreement shall be interpreted so as to prohibit EIT or Client 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.
Except as provided in Section 6 (Indemnification), this Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties.
Services
If applicable, provided by EIT as separate attachment(s).
This Addendum A: Terms Specific to Product Sales Only (“Addendum A”) applies to any order for software, hardware, or Resold Services (“Products”) made by Client, for its own internal use and not for resale, pursuant to a quotation issued by EIT (“Quotation”). As used in this Addendum A, the term “Resold Services” refers to services (e.g. Software as a Service), which although ordered from EIT, are procured from and supplied by a third party (i.e., EIT does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum A.
EIT MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. EIT 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.
