Services Terms & Conditions
TERMS AND CONDITIONS
1. These Terms & Conditions (“Terms”) apply to Client purchases from The Fulcrum Group, Inc. (hereafter referred to as “TSP”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services. Client hereby engages and retains TSP to render Services or provide Product, as specifically set forth and limited in the Statement of Work (“Statement of Work”) or “REQUESTED SERVICES”, or subsequent Statements of Work (SOW), or any work order as agreed among by the Parties COLLECTIVELY HEREAFTER REFERRED TO AS “REQUESTED SERVICES” Except as otherwise stated therein, subsequent REQUESTED SERVICES” shall be made a part of and subject to these Terms. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic “REQUESTED SERVICES” each of which is deemed incorporated in these Terms for all purposes. In the event of any conflict between the “REQUESTED SERVICES” and these Terms, the terms of the “REQUESTED SERVICES” will prevail over these Terms.
GENERAL REQUIREMENTS & CONDITIONS.
1.1 System. For the purposes of these Terms, “System” means, collectively, any computer network, computer system, peripheral or device that is tracked using TSP’s Remote Monitoring and Management tool. To avoid a delay or negative impact on our provision of the Services, during the term of each “REQUESTED SERVICES” Client agree to refrain from modifying or moving the System, or installing software on the System, unless TSP expressly authorizes such activity. TSP will not be held responsible or liable for changes made by client without authorization.
1.2 Maintenance; Updates. If patches and other software-related maintenance updates (“Update(s)”) are provided under the “REQUESTED SERVICES”, TSP will install the Updates only if TSP has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. TSP will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer or applicable vendor’s instructions.
1.3 Third-Party Service Providers. “Third-Party Service Providers” means Services provided by an entity or a Party other than the TSP in fulfillment of the “REQUESTED SERVICES” requirements whose terms and conditions TSP and Client may be legally bound.
Client’s right to use the Third-Party Services is subject to Client’s understanding of, compliance with and consent to these Terms and of any Third-Party agreements, which TSP does not have authority to vary, alter or amend.
Therefore, TSP may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms. The Third-Party Service Provider may require the TSP to sign a contract with the Third-Party Service Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may impose conditions and requirements upon Client. In such cases, Client will be notified of same in writing and allowed to review those conditions for purposes of consenting or objecting to any conditions which will be imposed upon it. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or appear on our website which identifies the Third-Party Service Provider and a link to its terms and conditions or EULA.
The links are being provided as a courtesy, Client should monitor the links for the 3rd Party Providers to determine if they have the most current Terms and Conditions.
1.4 Third-Party Product Vendors. “Third-Party Product Vendors” means software, machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the “REQUESTED SERVICES”.
TSP will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and TSP will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product. Where applicable, a Third-Party Product Vendor may require the TSP to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”) and the terms of the Third-Party Contract may impose certain conditions and requirements upon Client. In such cases, Client will be notified of same in writing and allowed to review those conditions and requirements for purposes of consenting or objecting to any which will be imposed upon it. Client hereby agrees to review all Third-Party terms and conditions, and consent or object to those Third-Party terms and conditions which Client has consented TSP to contract upon its behalf. Third-Party Product Vendor terms and conditions link can be found at our website and/or IN “REQUESTED SERVICES”.
1.5 Third-Party Products. Unless otherwise stated in “REQUESTED SERVICES”, all hardware, software, peripherals, or accessories purchased through TSP (“Third-Party Products”) are nonrefundable once the applicable “REQUESTED SERVICES” is placed in our queue for delivery. Unless otherwise expressly stated in a “REQUESTED SERVICES”, all Third-Party Products are provided “as is” and without any warranty whatsoever as between TSP and Client (including but not limited to implied warranties).
1.6 Third-Party Support. If, in TSP’s discretion, a hardware or software issue requires vendor or OEM support, TSP may contact the vendor or OEM (as applicable) on Client’s behalf and pass through to Client all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $100, TSP will obtain Client permission before incurring such expenses on Client behalf unless exigent circumstances require otherwise.
1.7 Subcontractors. “Subcontractors” means third-party to whom TSP contracts to provide specified services to complete the services indicated in the applicable “REQUESTED SERVICES”.
1.8 Conditions of Service. Client System is eligible for provision of TSP’s Services as outlined in the “REQUESTED SERVICES”, provided the System is in good condition and TSP’s serviceability requirements and site environmental conditions are met:
1.8.1 Client shall provide adequate workspace, heat, light, air conditioning, ventilation, electric current and outlets, internet, and remote access for use by TSP’s representatives.
1.8.2 TSP’s representatives shall have, and Client shall provide, full access to the System in order to affect the necessary monitoring and/or supplemental services.
1.8.3 TSP reserves the right to suspend or terminate these Terms or any “REQUESTED SERVICES” in its sole discretion if conditions at the service site pose a health or safety threat to any of TSP’s representatives.
It is the responsibility of Client to promptly notify TSP of any events/incidents that may impact the services defined within these Terms and/or any supplemental service needs.
TSP shall provide services as defined in the “REQUESTED SERVICES” during TSP’s regular business hours, unless otherwise specified in any subsequent SOW, or other contract documents, and in accordance with TSP’s IT Service policies then in effect.
Client agrees that Client will inform TSP, prior to, Client making any modification, installation, or service performed on the System by individuals not employed or contracted by TSP in order to assist TSP in providing an efficient and effective System support response. Client will be billed the full cost, at TSP’s hourly rate, to remediate and restore the Systems and/or Services to a state prior to change.
Only Authorized Contacts will be eligible to access and service Client System. Any unauthorized access or service conducted on the System without the explicit consent of TSP, which results in negative System performance, will not be covered by the monthly plan fee as documented in the “REQUESTED SERVICES” and will be billed according to TSP’s labor rates as outlined in the “REQUESTED SERVICES” or subsequent SOW.
TSP shall be obligated to provide service only at (a) the Service Site(s) as identified in the “REQUESTED SERVICES”; and (b) client systems as identified which is defined as client covered devices in the Remote Monitoring Management (“RMM”) platform. If Client desires to relocate, add, or remove locations, Client shall give appropriate notice to TSP of Client’s intention to relocate sixty (60) days in advance. TSP reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by Client. Such right includes the right to refuse service at the relocation and/or new site.
1.9 Service Limitations. In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:
1.9.1 Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of these Terms. TSP will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
1.9.2 Any unauthorized changes made to the System without TSP’s written consent which causes issues or failures to the System, are beyond the responsibility of TSP and Client will be billed the full cost to restore the System to its original state.
1.10 Onboarding Process. Client acknowledges and agrees that TSP will have no responsibility for any deficiencies in the current operating systems and infrastructure until the TSP has had a reasonable opportunity to conduct a review of the current system and to provide Client with its recommendations, and Client has accepted and implemented same.
1.11 Offboarding Process. In the event of termination of Services by either party, TSP will make reasonable accommodations to transfer Client’s account to Client or Client’s new managed service provider or other authorized agent (the “Onboarding Provider”). Client shall indemnify and hold harmless TSP, its Subcontractors and their respective directors, officers, employees, consultants and agents for any claims or losses resulting from the activities of Client or the Onboarding Provider during the transition period from TSP to the Onboarding Provider, inclusive of when Client obtains access to all super administrator accounts of their infrastructure. Transfer will require that Client’s account be fully paid at time of transfer inclusive of any offboarding charges.
1.12 Network Devices, Hardware and Systems: TSP shall only be responsible for providing services to network devices, hardware and systems identified by the Client and TSP and set forth in the latest “REQUESTED SERVICES” and covered by Remote Management Monitoring (Hereafter referred to as “RMM”) TSP may, in its sole discretion, deny requests to add devices, hardware or systems. The Client shall bear the responsibility to isolate and protect the system by not allowing additional devices, hardware or system on the system unless approved by TSP. TSP shall have no responsibility for any devices, hardware or systems or damage resulting therefrom that are added to the System without TSP’s approval. TSP shall have the right to cancel this contract if devices, hardware, or systems are added without their approval. If Client obtains new devices, hardware or systems and wishes to request TSP’s services to extend to new devices, hardware, or systems, said extension shall not take effect unless and until both Parties agree in writing to a new “REQUESTED SERVICES” and the device is added to the RMM. Said written, signed “REQUESTED SERVICES” shall then become an addendum to this contract and incorporated herein. TSP reserves the right to deny any requests for additional services and/or additional hardware/systems for any reason in their sole discretion.
1.13 Authorized Contact(s). Client understands and agrees that TSP will be entitled to rely on any directions or consent provided to TSP by any of Client Authorized Contacts, as indicated in an applicable “REQUESTED SERVICES”. If no Authorized Contact is identified in an applicable, “REQUESTED SERVICES” then Client Authorized Contact will be the person(s) (i) who signed the Quote, OR “REQUESTED SERVICES”, and/or (ii) who signed the applicable “REQUESTED SERVICES” If Client desires to change Client Authorized Contact(s), please notify TSP of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
1.14 Shared Administrator Credentials. If Client shares server, network, or software application administrative credentials, TSP will not be held legally liable or responsible for any outages, errors, breaches, data loss and misconfiguration since multiple administrators from different companies jeopardizes the integrity of the support outlined in these Terms.
2. CONFIDENTIALITY AND NON-DISCLOSURE.
2.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
2.2 Client Confidential Information shall include any personally identifiable information or protected health information of Client employees, Client customers, and Client Data. Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. Client acknowledges and agrees that Third-Party Service Providers (defined in Section 1.3 above) and Third-Party Product Vendors (defined in Section 1.4 above) are not parties to any SOW, these Terms or other agreement with TSP unless specifically agreed in writing and Client must obtain a separate BAA with the Third-Party Service Provider or Third-Party Product Vendor. Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, Client hereby agrees to defend, indemnify and hold harmless TSP and any affiliated company, and TSP’s respective present and former shareholders, officers, directors and employees and its attorneys and agents, and TSP’s predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of Client to comply with these Terms in proper handling of protected health information to the extent not caused by TSP’s negligence or gross negligence and/or due to the absence of any necessary BAA, or failing to notify TSP of the necessity of same.
2.3 Confidential Information of each Party shall include the terms and conditions of these Terms and all “REQUESTED SERVICES” as well as business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes disclosed by such Party.
2.4 Confidential Information (other than Client Data) shall not include any information that:
(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(c) is received from a third-party without breach of any obligation owed to the Disclosing Party, or
(d) was independently developed by the Receiving Party.
2.5 Protection of Confidential Information. The Receiving Party shall:
(a) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,
(b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms or otherwise in any manner to the Disclosing Party’s detriment, and
(c ) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors and agents who need such access for purposes consistent with these Terms.
2.6 Non-disclosure. Neither Party shall disclose these Terms or any “REQUESTED SERVICES” to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.
2.7 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
2.8 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody, or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy. In the event that return or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.
3. PROVISION OF MATERIALS AND SERVICES TO TSP. Client agrees to timely furnish, at Client’s own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe workspaces for purposes of TSP or its subcontractors, performing the Services. Client will also provide TSP or its subcontractors, with access to all information, passwords and facilities requested by TSP that is necessary for TSP or its subcontractors, to perform the Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that TSP or its subcontractors, may be unable to perform their duties adequately and if such a situation should exist, Client will hold the TSP harmless.
4. RESPONSIBILITY FOR EQUIPMENT. Client acknowledges that from time to time (a) TSP may identify additional items that need to be purchased by Client, and (b) changes in Client system may be required in order for TSP to meet Client requirements. In connection therewith, Client agrees to work in good faith with TSP to effectuate such purchases or changes, and such changes shall be set forth in a new “REQUESTED SERVICES”. If TSP is required to purchase any assets, including computer hardware and/or software, in connection with TSP providing the Services, all such assets will remain the sole property of TSP, except those assets sold by TSP to Client or procured by TSP on Client’s behalf shall be the sole property of Client. Client will take such reasonable precautions to ensure the quality, completeness and workmanship of any item or equipment or hardware furnished by Client, and for ensuring that the materials provided to TSP or its subcontractors, do not infringe or violate the rights of any third-party. Unless otherwise specified in the “REQUESTED SERVICES” that it is not the intent, nor does the TSP provide any type of backup of Client data. Client will maintain adequate backup for all data and other items furnished to TSP.
It is the Customer’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to TSP’s products or services and TSP disclaims all responsibility for any loss including data.
5. CLIENT DATA OWNERSHIP AND RESPONSIBILITY. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Client to TSP.
6. INTELLECTUAL PROPERTY. TSP retains all intellectual property rights in any property invented or composed in the course of or incidental to the performance of these Terms, as well as any software, materials, or methods created prior to or after conclusion of any work (“Intellectual Property”). Client acquires no right or interest in any such intellectual property, by virtue of these Terms or the work performed under these Terms.
6.1 Client may only use and disclose Intellectual Property in accordance with the terms of these Terms and applicable “REQUESTED SERVICES”. TSP reserves all rights in and to the Intellectual Property not expressly granted in these Terms. Client may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Intellectual Property, without TSP’s prior written approval. Except as expressly authorized in these Terms or any “REQUESTED SERVICES”, Client may not (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense or other transfer), or (b) operate the Intellectual Property in an outsourcing or TSP business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Intellectual Property.
7. LICENSE AGREEMENTS.
(a) License. Subject to these Terms, TSP grants Client a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Client’s own internal use. At all times, all software on the System must be genuine and licensed, and Client agrees to provide TSP with proof of such licensing upon its request. If TSP requires Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of TSP providing its Services to Client.
(b) Software Installation or Replication. If TSP is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. Client’s act of providing any software to TSP will be deemed Client’s affirmative acknowledgement to TSP that Client has a valid license that permits TSP to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client equipment for the installation of unlicensed software. Customer will indemnify and hold harmless TSP against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to TSP or any Customer breach of this Section.
(c) Pre-Existing License Agreements. Any software product provided to Client by TSP as a reseller for a third-party, which is licensed to Client under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
(d) EULA. Portions of the Services may require Client to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required to provide the Services to Client, then Client hereby grants TSP permission to accept the EULA on Client’s behalf after notice and acceptance by Client. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, TSP is required to comply with a third-party EULA and the third-party EULA is modified or amended, TSP reserves the right to modify or amend any applicable “REQUESTED SERVICES” with Client, after notice and acceptance by Client, to ensure its continued compliance with the terms of the third-party EULA. Client agrees to hold harmless and Indemnify TSP against Client violation of any of the terms and conditions included in the subject EULA that Client has been notified of and accepted.
8. TSP’S EMPLOYEE’S, AGENTS OR SUBCONTRACTORS. Client acknowledges that TSP has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors, and independent subcontractors. To the extent permitted by law from the Effective Date of the last SOW and up to one (1) calendar year after the date of termination of any “REQUESTED SERVICES”, Client shall not hire or contract, directly or indirectly, with any of the TSP’s employees, agents or subcontractors who have communicated with and/or worked on any Service for Client. Client and TSP mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by Client of this provision. Therefore, Client and TSP mutually agree that in the event of a knowing breach by Client in any way of this provision, Client shall pay to TSP as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($50,000.00). This amount is an effort by both parties to properly and reasonably assess the damages that TSP would suffer as a direct result of a breach by Client, taking into account the following facts and circumstances: (a) an average employee working for TSP will generate significant net revenue for the TSP and remain employed by the TSP for an extended period of time; (b) TSP will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to the TSP upon such breach is virtually impossible. In light of these circumstances, Client and TSP mutually agree that this liquidated damages provision represents reasonable compensation to TSP for the losses that it would incur due to any such breach.
9. WARRANTY. TSP warrants that it or its subcontractors, will perform the services substantially in accordance with the specifications set forth whether under these Terms, “REQUESTED SERVICES” or otherwise in connection with any of them. For any breach of the foregoing warranty, TSP or its contracted subcontractors, will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to TSP specifying in reasonable detail such non-conformance. If TSP concludes that conformance is impracticable, then TSP will refund all fees paid by Client to TSP hereunder, if any, allocable to such nonconforming Services.
Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by TSP product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than TSP, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by TSP (ii) misused, abused, or not operated in accordance with the specifications of TSP or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than TSP or persons approved or designated by TSP.
Notwithstanding the above, TSP does not warrant its products or services beyond a reasonable standard or skill consistent with commercial industry standards. TSP does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery or performance, including those delays caused by supply-chain delays or disruptions.
10. SOFTWARE HARDWARE & SECURITY. Client understands and agrees that data loss or network failures may occur, whether or not foreseeable. Therefore, Client must maintain proper security for Client System including but not limited to software and hardware updates that are made available by the manufacturer. Client will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework.
11. CLIENT CYBER SECURITY. It is understood that within the Services provided, it is not the intent, nor does the TSP provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for Client unless otherwise specified in the “REQUESTED SERVICES”. As cyber threats are always evolving it is strongly recommended that Client engage the services of a cyber protection third-party vendor to independently monitor the cyber controls and cyber activities in Client System.
12. REGULATORY COMPLIANCE. Any software or service provided by TSP is not intended to bring Client into full regulatory compliance with any rule, regulation, national standard, or requirement. The software, service, or solutions may aid Client’s efforts to achieve regulatory compliance, however, TSP does not provide comprehensive compliance solutions.
13. UNAUTHORIZED INFORMATION TRANSFER. In no event, except for the willful misconduct or gross negligence on its part, shall TSP or its subcontractors, whether under these Terms, a “REQUESTED SERVICES”, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach or other form of cyberattack, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Client’s data or Systems are breached because of the distribution of and Client’s response to, unsolicited email, direct mail, facsimiles, unsolicited text messages, voice calls, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
14. EXTRAORDINARY EVENTS. In no event, except for the willful misconduct or gross negligence on its part, shall TSP or its subcontractors, whether under these Terms, “REQUESTED SERVICES” or subsequent SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of a cyberattack or any other extraordinary event not contemplated by these Terms.
15. RELEASE WITH LIMITATION OF LIABILITY. THIS PARAGRAPH LIMITS THE LIABILITIES ARISING UNDER THESE TERMS OR ANY “REQUESTED SERVICES” OR IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS. THE PARTIES ACKNOWLEDGE AND AGREE THEY WOULD NOT ENTER INTO THESE TERMS UNLESS THEY COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. EXCEPT FOR TSP’S FRAUD, NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, CLIENT AND ANY OF CLIENT AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS AGREE TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, INCLUDING INDEMNIFICATION OBLIGATIONS, AGREE TO RELEASE THE TSP AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.
16. MUTUAL INDEMNIFICATION AND HOLD HARMLESS. TSP AND CLIENT, TO THE FULLEST EXTENT PERMITTED BY LAW, SHALL AT ALL TIMES DEFEND, INDEMNIFY, PAY, SAVE AND HOLD THE OTHER AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS HARMLESS FROM EACH AND ANY AND ALL LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES), COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES AND ANY OTHER REASONABLE COSTS OF LITIGATION) (HEREINAFTER COLLECTIVELY, THE “CLAIMS”) THAT TSP OR CLIENT MAY SUFFER, SUSTAIN OR INCUR TO THE EXTENT CAUSED BY OR ARISING OUT OF THE NEGLIGENCE OF THE OTHERARISING OUT OF THESE TERMS.
THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON TSP OR CLIENT: (I) NOTIFYING THE OTHER PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE.;
17. TSP INSURANCE. TSP agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law. Without limiting the foregoing, to the extent these Terms create exposure generally covered by the following insurance policies, TSP will maintain at its own sole cost and expense at least the following insurance covering its obligations under these Terms: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
TSP shall have Client included in the Commercial General Liabilty and Professional Liability policies as an additional insured. Such status will provide protection, subject to the policy terms and conditions, where liability is imposed on Client as a result of the wrongful act of TSP.
18. CLIENT INSURANCE.
18.1 Commercial Property Insurance. Client shall secure at Client’s own cost and expense Property Insurance for
Client equipment that is part of the provisions of the service agreement.
18.2 Cyber and Privacy Insurance. Client acknowledges that Client is solely responsible for obtaining and maintaining, for the duration of these Terms, its own Cyber and Privacy Liability Insurance to adequately insure its cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client’s specific coverage and policy limit requirements. Client acknowledges that TSP does not provide Client with any form of Cyber and Privacy Liability or other insurance coverage in connection with the Services or an executed “REQUESTED SERVICES” and that Client’s use of the Services does not, in any way: (i) replace a Cyber and Privacy Liability policy, (ii) mitigate Client’s need for Cyber and Privacy Liability insurance coverage or (iii) relieve Client’s responsibility for obtaining its own Cyber and Privacy Insurance coverage.
18.3 Mutual Waiver of Subrogation. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER AND PRIVACY OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD TSP OR ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH COVERED LOSSES.
19. DISCLAIMERS. The express remedies set forth in these Terms will constitute Client’s exclusive remedies, and TSP’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
EXCEPT FOR THE WARRANTIES MADE BY TSP IN SECTION 9, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” TSP DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
TSP DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY OF CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any TSP employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever.
20. SEVERABILITY. If any provision of these Terms is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms shall not render invalid the remainder of the Terms.
21. AMENDMENT. These Terms may not be amended except by a writing executed by an authorized individual of TSP and Client.
22. RELATIONSHIP. The Parties are independent parties; and these Terms do not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture. It is further understood that there is no relationship, including but not limited to a partnership, joint venture, subcontractor, or other commission-based relationship, between any party that referred TSP or Client to the other party to these Terms.
23. LAW. These Terms shall be governed by and construed in accordance with the laws of the State of Texas without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of Tarrant County, Texas.
24. WAIVER. Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
25. FORCE MAJEURE. Neither party will be liable to the other party for delays or failures to perform its obligations under these Terms and Conditions or any “REQUESTED SERVICES” or because of extraordinary circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware solution, or if such loss, delay or failure to perform was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic, or other physical event and civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
26. DATA ACCESS/STORAGE. Depending on the Service provided, a portion of Client data may occasionally be accessed or stored on secure servers located outside of the United States. Client agrees to notify TSP if Client company requires TSP to modify Our standard access or storage procedures.
27. ASSIGNMENT. Neither these Terms, any SOW, nor any Service may be assigned or transferred by a party without the prior written consent of the TSP. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, TSP may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes TSP’s obligations hereunder in writing.