Terms of Service

PRODUCTS & SERVICES TERMS AND CONDITIONS

PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY

The Terms and Conditions, as amended from time to time, of Customer’s purchase of products or services (collectively, “Services”) from Service Provider (“Service Provider”) are limited to those contained herein.  Any additional or different Terms or Conditions in any form delivered by You (“Customer”) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.

By receiving Services from Service Provider or by making payment to Service Provider, Customer agrees to be bound by and accepts these Terms and Conditions.

Any general description of the Services or the results thereof posted on any Service Provider website or mobile application does not constitute part of the Terms and Conditions between Service Provider and Customer.

These Terms and Conditions constitute a binding contract between Customer and Service Provider and are referred to herein as “Terms and Conditions”.  In addition to any Terms and Conditions that references or incorporates these Terms and Conditions, Customer accepts these Terms and Conditions by making a purchase from or placing an order with Service Provider or any Service Provider website or mobile application (each, a “Site”).  These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Statement of Work Form will govern the order in question, unless otherwise agreed to in writing by Service Provider and Customer.

Customer consents to receiving electronic records, which may be provided via a web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in paper upon written request to Service Provider.  In addition, Internet connectivity requires access to online services from an Internet access provider. You should contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of original signed documents.

  1. Services.

Under these Terms and Conditions, Client may order products or services (collectively, “Services“) from or through Service Provider from time to time. Service Provider shall perform or procure any services for Client pursuant to and in accordance with separate written statements of work (each, a “Statement of Work“), each of which shall reference and be incorporated into these Terms and Conditions as an exhibit hereto, and which shall be signed by duly authorized representatives of Client and Service Provider. In the event of an addition to or a conflict between any term or condition of these Terms and Conditions and a Statement of Work, the terms and conditions of these Terms and Conditions will control, except as expressly amended in the applicable Statement of Work by specific reference to these Terms and Conditions. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in writing executed by authorized representatives of both parties. Service Provider will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in writing and executed by authorized representatives of both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable Statement of Work.

  1. Cooperation.

In addition to any specific Client duties set forth in any applicable Statement of Work, Client agrees to cooperate with Service Provider in connection with performance of the Services by providing (i) timely responses to Service Provider’s inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by Service Provider which are necessary or useful as determined by Service Provider in connection with providing the Services, including, but not limited to, physical and computer access to Client’s computer systems, and (iii) all Consents necessary for Service Provider to provide the Services. “Consents” shall mean consents or approvals required to give Service Provider, its Affiliates (hereinafter defined), and its and their subcontractors the right or license to access, use and modify all data and third-party products. Client acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Client and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel“) engaged or appointed by Client who are selected by Client to work with Service Provider. Service Provider will follow all reasonable Client security rules and procedures, as communicated in writing by Client to Service Provider from time to time.

  1. Access.

Service Provider may perform the Services at Client’s place of business, at Service Provider’s own facilities or such other locations as Service Provider and Client deem appropriate. When the Services are performed at Client’s premises, Service Provider will attempt to perform such Services within Client’s normal business hours unless otherwise jointly agreed to by the parties. Client will also provide Service Provider access to Client’s staff and any other Client resources (and when the Services are provided at another location designated by Client, the staff and resources at such location) that Service Provider determines are useful or necessary for Service Provider to provide the Services. When the Services are provided on Client’s premises or at another location designated by Client, Client shall maintain adequate insurance coverage to protect Service Provider and Client’s premises and to indemnify and hold Service Provider and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of Service Provider’s gross negligence or willful misconduct.

  1. Vendor Services.

Certain Services, including, but not limited to, extended warranty service by manufacturers, are sold by Service Provider as a distributor or sales agent (“Vendor Services“). In the case of Vendor Services, such third party shall be the party responsible for providing the services to the Client and Client will look solely to such third party for any loss, claims or damages arising from or related to the provision of such Vendor Services. Client hereby releases, indemnifies and holds harmless Service Provider and the entities that control, are controlled by, or are under common control with Service Provider (“Affiliates“) and its and their members, managers, directors, officers, employees, independent contractors and agents (collectively, with Service Provider and the Affiliates, the “Indemnified Parties” and each an “Indemnified Party“) from any and all claims arising from or relating to the purchase or provision of any such Vendor Services. Any amounts, including, but not limited to, taxes, associated with Vendor Services which may be collected by Service Provider will be collected solely in the capacity as an independent sales agent.

  1. Products.

Service Provider shall sell to Client such IT products or software (collectively, “Products“) as shall be ordered by Client. Service Provider shall provide such Products to Client pursuant to and in accordance with the terms and conditions of these Terms and Conditions and such sales shall be invoiced directly to Client by Service Provider. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void.

  1. Delivery; Risk of Loss.

If Client provides Service Provider with Client’s carrier account number or selects a carrier other than a carrier that regularly ships for Service Provider, title to Products and risk of loss or damage during shipment pass from Service Provider to Client upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from Service Provider to Client upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Client’s rights therein are contained in the license agreement between such licensor(s) and Client.

  1. Export Sales.

If any transaction between Client and Service Provider involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items shall be exported from the United States by Service Provider in accordance with the Export Administration Regulations. Client agrees that it will not divert, use, export or re-export such items contrary to United States law. Client expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Client also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.

  1. Payment.

Client agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Client), including shipping charges that are billed to Service Provider as a result of using Client’s carrier account number. Payment terms are within Service Provider’s sole discretion. In connection with Services being performed pursuant to a Statement of Work, Client will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Client will pay for the Services as invoiced by Service Provider. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by Service Provider. Service Provider, or any of its Affiliates on behalf of Service Provider may issue an invoice to Client. Service Provider may invoice Client separately for partial shipments, and Service Provider may invoice Client for all the Services described in a Statement of Work or any portion thereof. Client agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Client will pay for and will indemnify and hold Service Provider and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Statement of Work, the Products, or the Services. Client must claim any exemption from such taxes, fees or charges at the time of purchase and provide Service Provider with the necessary supporting documentation. In the event of a payment default, Client will be responsible for all of Service Provider’s costs of collection, including, but not limited to, court costs, filing fees and reasonable attorneys’ fees. In addition, if payments are not received as described above, Service Provider reserves the right to suspend Services until payment is received. Client hereby grants to Service Provider a security interest in the Products to secure payment in full. Client authorizes Service Provider to file a financing statement reflecting such security interest. Except as otherwise specified on an applicable Statement of Work, Client will reimburse Service Provider for all reasonable out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services, including, but not limited to, travel and living expenses.

  1. Pricing Information; Availability Disclaimer.

Service Provider reserves the right to adjust pricing, Products, and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders for Products and Statements of Work are subject to Product availability and the availability of personnel to perform the Services. Therefore, Service Provider cannot guarantee that it will be able to fulfill Client’s orders for Products or Statements of Work. If Services are being performed on a time and materials basis, any estimates provided by Service Provider are for planning purposes only.

  1. Credits.

Any credit issued by Service Provider to Client for any reason must be used within twelve (12) months from the date that the credit was issued and may only be used for future purchases of Products and/or Services. Any credit or portion thereof not used within the twelve (12) month period will automatically expire.

  1. Warranties; Waivers of Warranties.

Client understands that Service Provider is not the manufacturer of the Products purchased by Client hereunder and the only warranties offered are those of the manufacturer, not Service Provider or its Affiliates. In purchasing the Products, Client is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Service Provider or its Affiliates. SERVICE PROVIDER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. Client expressly waives any claim that it may have against Service Provider or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim“) with respect to any Product and also waives any right to indemnification from Service Provider or its Affiliates against any such Claim made against Client by a third party. Client acknowledges that no employee of Service Provider or its Affiliates is authorized to make any representation or warranty on behalf of Service Provider or any of its Affiliates that is not in these Terms and Conditions.

Service Provider warrants only that the Services will be performed in a good and workmanlike manner. Client’s sole and exclusive remedy and Service Provider’s entire liability with respect to this warranty will be, at the sole option of Service Provider, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Client related to the portion of the Services not in substantial compliance; provided, in each case, Client notifies Service Provider in writing within five (5) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS SERVICE PROVIDER’SS WARRANTY, AND SUBJECT TO APPLICABLE LAW, SERVICE PROVIDER MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF SERVICE PROVIDER OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SERVICE PROVIDER OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS TERMS AND CONDITIONS OR IN A STATEMENT OF WORK EXPRESSLY AMENDING SERVICE PROVIDER’S WARRANTY.

Client shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Client shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. SERVICE PROVIDER AND THE INDEMNIFIED PARTIES ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.

  1. Force Majeure.

Service Provider will not be responsible for and no liability shall result to Service Provider or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond Service Provider’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by Service Provider or any purported deadlines contained in a Statement of Work or any other document are estimates only.

  1. Limitation of Liability.

UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SERVICE PROVIDER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SERVICE PROVIDER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY SERVICE PROVIDER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SERVICE PROVIDER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (i) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (ii) $30,000.00.

  1. Limited License.

Client’s sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of these Terms and Conditions that are embodied in such work or materials (“Work Product“) will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Client’s internal use. Client will have no ownership or other property rights thereto and Client shall have no right to use any such Work Product for any other purpose whatsoever. Client acknowledges that Service Provider may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property“). Client agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.

  1. Proprietary Rights.

(i) Except as otherwise provided herein, the parties agree that all documents, designs, inventions, products, pricing, costs, future plans, business information, process information, technical information, customer lists, computer programs, computer systems, data, computer documentation, ideas, processes, techniques, know-how, knowledge and other proprietary and/or tangible materials authored or prepared by Service Provider (and its Affiliates) (“Work Product“) for Client as the Services are the sole and exclusive property of Service Provider or its third party licensees.

(ii) Client acknowledges that Service Provider provides services to other clients, and agrees, subject to Service Provider’s confidentiality obligations hereunder, that nothing in these Terms and Conditions shall be deemed or construed to prevent Service Provider from carrying on such business during the term of these Terms and Conditions. In particular, Client agrees that as part of Service Provider’s provision of the Services hereunder, Service Provider may utilize proprietary works of authorship that have not been created specifically for Client, including without limitation, software, methodologies, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, which have been originated, developed or purchased by Service Provider or by third parties under contract to Service Provider (all of the foregoing, collectively, “Service Provider’s Information“), and Service Provider’s Information and Service Provider’s administrative communications, records, files and working papers relating to the Services are and shall remain the sole and exclusive property of Service Provider.

(iii) Except as otherwise provided herein, upon payment in full of all fees and other amounts due under these Terms and Conditions and provided that Client is not in material breach of these Terms and Conditions, Service Provider grants to Client a perpetual, worldwide, non-exclusive, non-transferable license to use Deliverables and Service Provider’s Information incorporated into the Deliverables solely in connection with Client’s use of the Work Product. Except as otherwise provided herein, Client shall not have the right to license, sublicense or otherwise transfer to others the right to use the Work Product without Service Provider’s prior written consent.

(iv) Any and all data, information, reports, analysis, artwork, logos, graphics, video, text, and other materials, including without limitation, financial data supplied by Client to Service Provider in connection with these Terms and Conditions, if any, shall remain the sole and exclusive property of Client (the “Client Content“).

(v) Service Provider shall have the right to use Client’s name and trademark in its advertising, customer lists and marketing materials.

(vi) Each party agrees that it shall (a) maintain any Work Product, proprietary information, proposals, or trade secrets (“Confidential Information“) received from the other party in confidence, (b) exercise at least the same degree of care to safeguard the Confidential Information, (c) not disclose the Confidential Information to any third party, and (d) use the Confidential Information only to exercise its rights and fulfill its obligations under these Terms and Conditions.  Provided that neither party shall have any obligation with respect to information that (a) is public or becomes known to the public through no breach of the receiving party, (b) is independently developed by the receiving party, (c) is known to the receiving party prior to its receipt from the other party, (d) is rightfully received from a third party, or (e) is required to be disclosed by law or governmental order.  The obligations in this paragraph shall survive the termination of these Terms and Conditions.

  1. Return Privileges.

Service Provider allows customer returns based on the policies of the original product manufacturer. Software is not returnable if the packaging has been opened. If software was distributed electronically, it is not returnable if the licenses were downloaded. Clients must notify Service Provider Client Relations of any damaged Products within fifteen (15) days of receipt.

  1. Termination.

Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Client’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a Statement of Work, Client will pay Service Provider for all Services performed and expenses incurred up to and including the end date end of the Statement of Work agreed to by the parties plus any termination fee if one is set forth in the applicable Statement of Work. Specifically, Client shall be required to pay the value of the full entire term of the Statement of Work notwithstanding termination. In such event Client will also pay Service Provider for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under these Terms and Conditions will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).

  1. Indemnification.

Client shall indemnify, defend and hold harmless the Indemnified Parties, of and to the fullest extent permitted by law, from and against any actual or threatened disputes, claims (including without limitation, claims by any third party, any of Client’s employees, any governmental or regulatory agency, any owner of intellectual property or Third Party Intellectual Property, any of an Indemnified Party’s customers or suppliers), actions, lawsuits or proceedings (each, a “Claim” and, collectively, “Claims“), damages (including punitive, special, consequential, indirect, exemplary or incidental damages), losses, reasonable attorney’s fees, costs, expenses, liabilities and settlement amounts (each, a “Loss” and, collectively, “Losses“), whether or not well founded in law or fact, which arise out of or are directly or indirectly related to these Terms and Conditions, the breach or alleged breach by Client of any representation under these Terms and Conditions, the performance or nonperformance by Client (including, for purposes of this Section its employees and contractors/sub-contractors) of its obligations under these Terms and Conditions, or any acts or omissions of Client or any of its employees and contractors/sub-contractors occurring during the term of these Terms and Conditions, regardless of when the Loss occurs or the Claim is asserted, commenced or threatened.

  1. Survivability.

Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns.

  1. Waiver.

Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.

  1. Amendment.

No provision of these Terms and Conditions, Statement of Work, or Purchase Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties.

  1. Independent Status.

Service Provider shall perform as an independent contractor and maintain sole control of the manner and means of performing the services required under these Terms and Conditions. Service Provider shall complete these Terms and Conditions according to its own methods of work which shall be in the exclusive charge and control of Service Provider and which shall not be subject to control or supervision by Client, except as to the results of the work. Service Provider is, for all purposes arising out of these Terms and Conditions, an independent contractor, and neither Service Provider nor its employees shall be deemed an employee of Client for any purpose.

  1. Severability.

If any term or condition of these Terms and Conditions or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of these Terms and Conditions or the applicable Statement of Work.

  1. Notices.

Notices provided under these Terms and Conditions will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission.

  1. Governing Law.

These Terms and Conditions, any Statements of Work, services provided hereunder, or sale of products hereunder will be governed by the laws of the state of Texas, without regard to conflicts of laws rules. Any legal proceeding will be brought exclusively in Dallas County, Texas, and Client consents to the jurisdiction of the federal and state courts located therein, submits to the jurisdiction thereof and waives the right to change venue. Client further consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Service Provider under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.

  1. Entire Terms and Conditions; Prior Dealings.

These Terms and Conditions contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions, Statement of Work, or invoice.  In the event of ambiguity or question of intent or interpretation arises, these Terms and Conditions and such other documents shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of these Terms and Conditions or such other documents. As such, no party shall be considered the “Drafting Party“.

MANAGED SERVICES TERMS AND CONDITIONS

PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY

The Terms and Conditions, as amended from time to time, of Customer’s purchase of Managed Services (“Managed Services”) from Service Provider (“Service Provider”) are limited to those contained herein.  Any additional or different Terms or Conditions in any form delivered by You (“Customer”) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.

By receiving Managed Services from Service Provider or by making payment to Service Provider, Customer agrees to be bound by and accepts these Terms and Conditions.

Any general description of the Managed Services or the results thereof posted on any Service Provider website or mobile application do not constitute part of the Terms and Conditions between Service Provider and Customer.

These Terms and Conditions constitute a binding contract between Customer and Service Provider and are referred to herein as “Terms and Conditions”. In addition to any Terms and Conditions that references or incorporates these Terms and Conditions, Customer accepts these Terms and Conditions by making a purchase from or placing an order with Service Provider or any Service Provider website or mobile application (each, a “Site”).  These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Statement of Work Form will govern the order in question, unless otherwise agreed in writing by Service Provider and Customer.

Customer consents to receiving electronic records, which may be provided via a web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in  paper upon written request to Service Provider. In addition, Internet connectivity requires access services from an Internet access provider, contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.

Section 1. Definitions.
Fee(s)” means the amounts payable to Service Provider as specified in the applicable Order.

Helpdesk Support” means unique telephone and chat based applications deployed by Service Provider to provide instant helpdesk support to the Customer’s end users.

Managed Services” means Network Operations Center Monitoring, Helpdesk Support, or Onsite Support tailored to the specific needs of the Customer under an Order or a Statement of Work.

Network Operations Center Monitoring” means active monitoring of Windows desktops, taking corrective action, and alerting the Customer contact and/or dispatch of a field technician based on the priority of the alert and Customer workflow or other requirements as outlined in an Order.

Onsite Support” means periodic visits or necessary Vendor Services as outlined in either these Terms and Conditions or Order or a Statement of Work that includes time and materials based engagements beyond normal day to day support.

Order” or “Statement of Work” means a Service Provider quote order or other ordering document agreed to in writing by the Parties under this Terms and Conditions as set forth in Section 2.

Subscription Period” means the time commencing on the Order Effective Date and continuing for the period specified in the applicable Order, or if no such period is specified, a 3-year period.

Terms and Conditions” means the terms and conditions contained in this Managed Services Terms and Conditions and all executed Orders.

Section 2. Scope of Managed Services.
Under these Terms and Conditions, Customer may order Managed Services from Service Provider from time to time during a Subscription Period. Service Provider shall perform or procure any services for Customer pursuant to and in accordance with separate written Orders, each of which shall reference and be incorporated into these Terms and Conditions as an exhibit hereto, and which shall be signed by duly authorized representatives of Customer and Service Provider. In the event of an addition to or a conflict between any term or condition of these Terms and Conditions and an Order, these Terms and Conditions will control, except as expressly amended in the applicable Order by specific reference to these Terms and Conditions. Each such amendment will be applicable only with respect to such Order and not to future Orders. Changes to the scope of the Services described in an Order will be made only in a writing executed by authorized representatives of both Parties. Service Provider will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both Parties. All such changes to the scope of the Managed Services will be governed by these Terms and Conditions and the applicable Order.

Section 3. Cooperation.
In addition to any specific Customer duties set forth in any applicable Order, Customer agrees to cooperate with Service Provider in connection with performance of the Managed Services by providing (i) timely responses to Service Provider’s inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by Service Provider which are necessary or useful as determined by Service Provider in connection with providing the Managed Services, including, but not limited to, physical and computer access to Customer’s computer systems, and (iii) all Consents necessary for Service Provider to provide the Managed Services. “Consents” shall mean consents or approvals required to give Service Provider, its Affiliates (hereinafter defined), and its and their subcontractors the right or license to access, use and modify all data and third-party products. Customer acknowledges and agrees that the Managed Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel“) engaged or appointed by Customer who are selected by Customer to work with Service Provider. Service Provider will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to Service Provider from time to time.

Section 4. Access.
Service Provider may perform the Managed Services at Customer’s place of business, at Service Provider’s own facilities or such other locations as Service Provider and Customer deem appropriate. When the Managed Services are performed at Customer’s premises, Service Provider will attempt to perform such Managed Services within Customer’s normal business hours unless otherwise jointly agreed to by the Parties. Customer will also provide Service Provider access to Customer’s staff and any other Customer resources (and when the Managed Services are provided at another location designated by Customer, the staff and resources at such location) that Service Provider determines are useful or necessary for Service Provider to provide the Managed Services. When the Managed Services are provided on Customer’s premises or at another location designated by Customer, Customer shall maintain adequate insurance coverage to protect Service Provider and Customer’s premises and to indemnify and hold Service Provider and its Affiliates (as defined below), and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Managed Services, other than solely as a result of Service Provider’s gross negligence or willful misconduct.

Section 5. Vendor Services.
Certain Services, including, but not limited to, extended warranty service by manufacturers, are sold by Service Provider as a distributor or sales agent (“Vendor Services“). In the case of Vendor Services, the such third party shall be the party responsible for providing the services to the Customer and Customer will look solely to such third party for any loss, claims or damages arising from or related to the provision of such Vendor Services. Customer hereby releases, indemnifies and holds harmless Service Provider and the entities that control, are controlled by, or are under common control with Service Provider (“Affiliates“) and its and their members, managers, directors, officers, employees, independent contractors and agents (collectively, with Service Provider and the Affiliates, the “Indemnified Parties” and each an “Indemnified Party“) from any and all claims arising from or relating to the purchase or provision of any such Vendor Services. Any amounts, including, but not limited to, taxes, associated with Vendor Services which may be collected by Service Provider will be collected solely in the capacity as an independent sales agent.

Section 6. Warranties; Waivers of Warranties.
Service Provider warrants only that the Managed Services will be performed in a good and workmanlike manner. Customer’s sole and exclusive remedy and Service Provider’s entire liability with respect to this warranty will be, at the sole option of Service Provider, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Managed Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Managed Services not in substantial compliance; provided, in each case, Customer notifies Service Provider in writing within five (5) business days after performance of the applicable Managed Services. EXCEPT AS SET FORTH HEREIN OR IN ANY ORDER THAT EXPRESSLY AMENDS SERVICE PROVIDER’S WARRANTY, AND SUBJECT TO APPLICABLE LAW, SERVICE PROVIDER MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE MANAGED SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY MANAGED SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING MANAGED SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE MANAGED SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF SERVICE PROVIDER OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SERVICE PROVIDER OR ANY OF ITS AFFILIATES THAT IS NOT IN THESE TERMS AND CONDITIONS OR IN A ORDER EXPRESSLY AMENDING SERVICE PROVIDER’S WARRANTY.

Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Managed Services. SERVICE PROVIDER AND THE INDEMNIFIED PARTIES ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE MANAGED SERVICES.

Section 7. Limitation of Liability.
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SERVICE PROVIDER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SERVICE PROVIDER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO MANAGED SERVICES; OR (D) ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY SERVICE PROVIDER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SERVICE PROVIDER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (i) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC MANAGED SERVICES GIVING RISE TO THE CLAIM; OR (ii) $30,000.00.

Section 8. Limited License.
Customer’s sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Managed Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of these Terms and Conditions that are embodied in such work or materials (“Work Product“) will be, during the Subscription Period, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer’s internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that Service Provider may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property“). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.

Section 9. Proprietary Rights.
(i) Except as otherwise provided herein, the parties agree that all documents, designs, inventions, products, pricing, costs, future plans, business information, process information, technical information, customer lists, computer programs, computer systems, data, computer documentation, ideas, processes, techniques, know-how, knowledge and other proprietary and/or tangible materials authored or prepared by Service Provider (and its Affiliates) (“Work Product“) for Customer as the Managed Services are the sole and exclusive property of Service Provider or its third party licensees. (ii) Customer acknowledges that Service Provider provides Managed Services to other Customers, and agrees, subject to Service Provider’s confidentiality obligations hereunder, that nothing in these Terms and Conditions shall be deemed or construed to prevent Service Provider from carrying on such business during the term of these Terms and Conditions. In particular, Customer agrees that as part of Service Provider’s provision of the Managed Services hereunder, Service Provider may utilize proprietary works of authorship that have not been created specifically for Customer, including without limitation, software, methodologies, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, which have been originated, developed or purchased by Service Provider or by third parties under contract to Service Provider (all of the foregoing, collectively, “Service Provider’s Information“), and Service Provider’s Information and Service Provider’s administrative communications, records, files and working papers relating to the Managed Services are and shall remain the sole and exclusive property of Service Provider. (iii) Except as otherwise provided herein, during the Subscription Period and provided that Customer is not in material breach of these Terms and Conditions, Service Provider grants to Customer a perpetual, worldwide, non-exclusive, non-transferable license to use deliverables and Service Provider’s Information incorporated into the deliverables solely in connection with Customer’s use of the Work Product. Except as otherwise provided herein, Customer shall not have the right to license, sublicense or otherwise transfer to others the right to use the Work Product without Service Provider’s prior written consent. (iv) Any and all data, information, reports, analysis, artwork, logos, graphics, video, text, and other materials, including without limitation, financial data supplied by Customer to Service Provider in connection with these Terms and Conditions, if any, shall remain the sole and exclusive property of Customer (the “Customer Content“). (v) Service Provider shall have the right to use Customer’s name and trademark in its advertising, customer lists and marketing materials. (vi) Each party agrees that it shall (a) maintain any Work Product, proprietary information, proposals, or trade secrets (“Confidential Information“) received from the other party in confidence, (b) exercise at least the same degree of care to safeguard the Confidential Information, (c) not disclose the Confidential Information to any third party, and (d) use the Confidential Information only to exercise its rights and fulfill its obligations under these Terms and Conditions.  Provided that neither party shall have any obligation with respect to information that (a) is public or becomes known to the public through no breach of the receiving party, (b) is independently developed by the receiving party, (c) is known to the receiving party prior to its receipt from the other party, (d) is rightfully received from a third party, or (e) is required to be disclosed by law or governmental order.  The obligations in this paragraph shall survive the termination of these Terms and Conditions.

Section 10. Fees and Payment.
10.1 Fees. Customer agrees to pay all Fees set forth in all Orders under these Terms and Conditions. In the event that the Parties mutually agree in writing to any extension of a Subscription Period, Customer will pay Service Provider the then-current list price for such extension, unless otherwise set forth in the applicable Order. Subject to any credits or refunds applicable to any Order hereunder, if any, all Fees are nonrefundable. All Fees and other amounts specified in these Terms and Conditions are payable in US Dollars. After the initial Subscription Period, Service Provider, may, increase the Fees it charges for the Managed Services. Any increase in the Fees will take effect at the beginning of Customer’s next Subscription Period, or at such later date as may be specified in the applicable Order.

10.2 Invoicing and Payment Terms. All existing Orders with Service Provider are held on a pre-paid status.  Service Provider invoices are issued on the 4th day of each month. If the 4th is a weekend or holiday invoices will be issued the Friday prior.  Invoices are due twenty (20) calendar days from date of issue (not the date on the invoice) and must be paid in full by the due date to avoid service suspension. The first month’s invoice will include pro-rated Managed Services fees, full first month’s Managed Services fees and applicable setup fees. Service Provider reserves the right to auto debit the Customer’s account for payments in default by 30 days or more without prior notice.  In such instances, Service Provider will debit the Customer’s account plus a late fee of one and a half percent (1.5%) of the Customer’s past due balance for each month past due. Service Provider requires an ACH or Credit Card Authorization be signed in the event past due payments must be debited as specified above. These payment terms are within Service Provider’s sole discretion. In connection with Managed Services being performed pursuant to these Terms and Conditions, Customer will pay for the Managed Services in the amounts and in accordance with any payment schedule set forth in the applicable Order(s) attached to these Terms and Conditions, which is expressly incorporated herein. If no payment schedule is provided, Customer will pay for the Managed Services as invoiced by Service Provider. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by Service Provider. Service Provider, or any of its affiliates on behalf of Service Provider may issue an invoice to Customer.

10.3 Credits. Any credit issued by Service Provider to Customer for any reason must be used within twelve (12) months from the date that the credit was issued and may only be used for future Managed Services. Any credit or portion thereof not used within the twelve (12) month period will automatically expire.

Section 11. Term and Termination.
11.1 Term of Terms and Conditions. These Terms and Conditions will commence on the Terms and Conditions Effective Date and will remain in effect for the duration of the Subscription Period specified in the last remaining Order(s) or is otherwise terminated as provided for in Section 11.3 (Termination for Cause) herein below. Each Subscription Period will be in effect for a period of 3 years from the Order Effective Date unless otherwise agreed in writing by the Parties or unless otherwise terminated in accordance with these Terms and Conditions.

11.2 Order Renewal. Unless these Terms and Conditions is terminated as provided for herein, the Order(s) under these Terms and Conditions will automatically renew for 1 year periods subject to payment of the corresponding Fees with either Party having the ability to provide the other Party with its intent not to renew the applicable Order(s) with at least 60 days written notice prior to the end of the then-current Subscription Period of such Order(s). For the avoidance of doubt, any discounts offered by Service Provider to Customer during a prior Subscription Period will not apply during any new or renewal Subscription Period unless specifically agreed-to in writing by the Parties.

11.3 Termination for Cause. Either Party may terminate these Terms and Conditions for cause: (a) upon 60 days written notice to the other party of a material breach if such breach remains uncured after the expiration of such period; or (b) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. Any failure by Customer to timely pay Fees owing hereunder or to comply with Sections 3 or 4 will constitute a material breach of these Terms and Conditions.

11.4 Early Termination. Service Provider reserves the right to terminate the Contract if

(a) the Customer’s past due balance exceeds 180 days, at which point the Customer’s past due balance will be debited in full plus a late fee of one and a half percent (1.5%) of the Customers’ past due balance for each month past due; or

(b) there is any material breach of any provision of these Terms and Conditions

Customer may voluntarily terminate these Terms and Conditions by providing written notice to Service Provider at least 45 days prior to the designated termination date.  Notwithstanding the foregoing, Customer is responsible for any Fees due Service Provider under these Terms and Conditions for the remaining Subscription Period. Customer shall not be released from its duty to pay Fees unless otherwise agreed to in writing and signed by an authorized agent of Service Provider or its successors or assigns.

11.5 Post-Termination Obligations. Upon termination or expiration of this Terms and Conditions for any reason, (a) Customer will have no further rights to the Managed Services hereunder; (b) Customer will, within 5 days of such termination or expiration, destroy all copies of any Work Product, Confidential Information, or Service Provider’s Information stored on Customer’s servers or other systems; and (c) if requested by Service Provider, Customer will promptly provide to Service Provider a written certification signed by an authorized representative certifying that all copies of Work Product, Confidential Information, or Service Provider’s Information have been destroyed. For 30 days following the expiration of the Termination of the Terms and Conditions and/or applicable Subscription Period, and subject to Customer’s prior written request, Service Provider will grant Customer limited access to the Work Product, Confidential Information, or Service Provider’s Information solely for purposes of Customer’s retrieval of the Customer Content. After such 30-day period, Service Provider will have no obligation to maintain the Customer Content and will delete the Customer Content unless legally prohibited.

11.6 Surviving Provisions. Upon any expiration or termination of these Terms and Conditions, the following sections will survive: Sections 1, 3, 4, 5, 6, 7, 9, 10.1, 10.2, 11.4, 11.5, 12, and 13.

Section 12. Indemnification.
Customer shall indemnify, defend and hold harmless Service Provider, of and to the fullest extent permitted by law, from and against any actual or threatened disputes, claims (including without limitation, claims by any third party, any of Customer’s employees, any governmental or regulatory agency, any owner of intellectual property or Third Party Intellectual Property, any of an Indemnified Party’s customers or suppliers), actions, lawsuits or proceedings (each, a “Claim” and, collectively, “Claims“), damages (including punitive, special, consequential, indirect, exemplary or incidental damages), losses, reasonable attorney’s fees, costs, expenses, liabilities and settlement amounts (each, a “Loss” and, collectively, “Losses“), whether or not well founded in law or fact, which arise out of or are directly or indirectly related to these Terms and Conditions, the breach or alleged breach by Customer of any representation under these Terms and Conditions, the performance or nonperformance by Customer (including, for purposes of this Section its employees and contractors/sub-contractors) of its obligations under these Terms and Conditions, or any acts or omissions of Customer or any of its employees and contractors/sub-contractors occurring during the term of these Terms and Conditions, regardless of when the Loss occurs or the Claim is asserted, commenced or threatened.

Section 13. Miscellaneous.
13.1 These Terms and Conditions and the Customer Statement of Work Form, if applicable, contains the entire understanding of the Parties with respect to the subject matters herein and supersedes and replaces in their entirety any and all other prior contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the Parties hereto with respect to the subject matter hereof. Each Party acknowledges that it has not relied on any statements, warranties or representations given or made by any other party under or in relation to these Terms and Conditions, save those expressly set out in these Terms and Conditions. Each Party further acknowledges that it shall have no rights or remedies with respect to such subject matter other than under these Terms and Conditions. No course of prior dealings between the Parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or invoice related thereto. The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party. A person who is not a party to this Agreement shall not have any rights under or in connection with it.

13.2 Non-waiver. The failure of or delay of either Party to exercise any right or remedy provided under these Terms and Conditions or at law will not constitute or be construed as a waiver or relinquishment of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

13.3 Assignment. Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of these Terms and Conditions or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Service Provider. Service Provider may assign or subcontract all or any portion of its rights or obligations under these Terms and Conditions without obtaining Customer’s consent: (a) to an Affiliate of Service Provider; or (b) in connection with a successor in interest in a merger, reorganization or a sale of all or substantially all of the assets of Service Provider. Subject to the foregoing restrictions, this Terms and Conditions will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

13.4 Integration; Order of Precedence. These Terms and Conditions, together with any Orders, to the maximum extent permitted by law constitutes the entire agreement and understanding between the Parties with respect to the subject matter of these Terms and Conditions, and supersedes any and all prior agreements, representations, understandings or arrangements between the Parties with regard to such subject matter. These Terms and Conditions may not be amended or modified except by a writing signed by both Parties hereto. The terms of these Terms and Conditions shall supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by Customer, unless the Parties mutually agree in writing that such terms and conditions shall modify, supersede and control in the event of any inconsistency with these Terms and Conditions.

13.5 Severability. In the event that any provision of these Terms and Conditions, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of these Terms and Conditions will continue in full force and effect and the application of such provision will be interpreted so as reasonably to affect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

13.6 Governing Law. These Terms and Conditions and any Orders will be governed by the laws of the state of Texas, without regard to conflicts of laws rules. Any legal proceeding will be brought exclusively in Dallas County, Texas, and Customer consents to the jurisdiction of the federal and state courts located therein, submits to the jurisdiction thereof and waives the right to change venue. Customer further consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Service Provider under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.

13.7 Force Majeure. Service Provider will not be responsible for and no liability shall result to Service Provider or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond Service Provider’s reasonable control, including, but not limited to delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any purported deadlines contained in an Order or any other document are estimates only.