DandyIT, LLC
Thank you for trusting DandyIT, LLC ("DandyIT,"
"we," "us," or "our") to provide you with professional information technology
services. This Master Services Agreement (this "Agreement") governs our
business relationship with you, so please read this document carefully and keep
a copy for your records.
SCOPE
a.
Context. Throughout this
Agreement, references to "Client," "you," or
"your" mean the entity who has accepted a quote, proposal, service order, statement
of work, or similar document (electronic or otherwise) from DandyIT. (In this
Agreement we refer collectively to these type of documents as a "Quote,"
although the actual title or caption of the service-related documents might
vary.)
i. This
document contains an arbitration provision that requires, under most
circumstances, disputes to be settled by arbitration and not by a judge or
jury. Please read the "Arbitration" section of this Agreement carefully. This document also contains
important provisions regarding your payment obligations, automatic renewal of
ongoing services, limitations of liability, and other significant matters;
please read this document and consider those issues carefully before accepting
a Quote.
ii. This
document limits or, in some cases, eliminates the liability of DandyIT for
services that it does not provide directly to you and/or which are provided to
you by third parties (defined as "Third Party Services" and "Third Party
Providers," below). Please read this
document and consider such limitations carefully before accepting a Quote.
b.
Scope of Services. This is a "master" agreement and, as such, specific services are not
listed in this Agreement. Instead, any
services to be provided to you or facilitated for you (as applicable) will be
described in a Quote (collectively, "Services"). The scope of our engagement with you is limited to those services
expressly listed in a Quote; all other services, projects, and related matters
are out-of-scope and will not be provided to you unless we expressly agree to
do so in writing (collectively, "Out of Scope Services"). In addition to a
Quote, the Services, as well as policies and procedures governing the Services,
are defined, clarified, and governed under an additional document that we will
refer to in this Agreement as a "Services Guide." Our Services Guide is akin to a "user manual"
that provides important and binding details about the Services, as well
as additional policies and procedures that you and we will follow, for example,
(i) how the Services are provided/delivered, (ii) service levels applicable to
the Services, (iii) additional payment terms/obligations, and (iv) auto-renewal
terms for the Services. Please read both
the Quote and the Services Guide before accepting the Quote. If you have any questions about
either of those documents or this Agreement, please do not sign the Quote and,
instead, contact us for more information.
c.
Version. Each Quote will be
governed under the version of this Agreement in place on the date that you
accept the Quote. We may change this Agreement from time to time, and modified
versions of this Agreement will apply to Quotes that you accept after the date
of such modifications. You can determine the version of this Agreement by noting
the "last updated" date indicated at the bottom of this document. We advise you to keep a copy of this document
and keep track of the date indicated below when you accept a Quote.
d.
Conflicts. The provisions of a Quote
govern over conflicting or materially different terms contained in this
Agreement and the Services Guide, which allows us to craft solutions to meet
your needs by making applicable changes in the Quote. Conflicting language
between the Services Guide and this Agreement will be interpreted in favor of
the Services Guide.
e.
Third Party Providers/Services. Some services may be provided to you directly
by our personnel, such as situations in which our personnel install software
agents on managed devices or physically install equipment at your premises.
These services are distinguishable from services that are provided to you or us
by third party providers, who are often referred to in the industry as
"upstream providers." (In this
Agreement, we call upstream providers "Third Party Providers" and the services that
Third Party Providers provide are called "Third Party Services"). By way of
example, Third Party Services may include cyber security, compliance, help desk
services, malware detection and remediation services, firewall and endpoint
security-related services, backup and disaster recovery solutions, and the
provision of software used to monitor the managed part of your network.
i. Selection. As your managed information
technology provider, we will select the Third Party Providers that provide
services appropriate for your managed information technology environment (the
"Environment") and facilitate the provision of those Third Party Services to
you. Not all Third Party
Services will be expressly identified as being provided by a Third Party
Provider. We reserve the right to change Third
Party Providers in our sole discretion as long as the change does not
materially diminish the Services we are obligated to provide or facilitate under
a Quote.
ii. Reseller.
We are resellers and/or facilitators of the Third Party Services and do
not provide those services to you directly. For this reason, we are not and
cannot be responsible for any defect, act, omission, or failure of any Third
Party Service or any failure of any Third Party Provider. Third Party Services are
provided on an "as is" basis only. If an
issue requiring remediation arises with a Third Party Service, then we will
endeavor to provide a reasonable workaround or, if available, a "temporary fix"
for the situation; however, we do not warrant or guarantee that any particular
workaround or fix will be available or achieve any particular result, or that
Third Party Services will run in an uninterrupted or error-free manner.
iii. Pass Through Increases. We reserve the right to pass
through to you any incremental increases in the costs and/or fees for Third
Party Services ("Pass Through Increases"). Since we do not control Third Party
Providers or Third Party Services, we cannot predict whether such price
increases will occur. Should they occur, we will endeavor to provide you with
as much advance notice as reasonably possible.
IMPLEMENTATION
a. Advice;
Instructions. We may offer you specific
advice and directions related to the Services ("Advice"). For example, our
Advice may include increasing server or hard drive capacity, increasing CPU
power, replacing obsolete equipment, or requesting that you refrain from
engaging in acts that disrupt the Environment or that make the Environment less
secure. You are strongly advised to promptly follow our Advice which, depending
on the situation, may require you to make additional purchases or investments
in the Environment at your sole cost. We are not
responsible for any problems or issues, including but not limited to downtime
or security-related issues, caused by or related to your failure to follow our
Advice promptly. If, in our reasonable discretion, your failure to follow our
Advice makes part or all the Services economically or technically unreasonable
or impracticable to provide or facilitate, then we may provide you with no less
than ten (10) days to remediate the issue(s). If the issues continue to exist
after this ten (10) day period,
then we may, at our discretion terminate the applicable Services For
Cause (explained below) by providing notice of termination to you or,
alternatively, we may adjust the scope of the Quote to exclude any impacted or
affected portion of the Environment. Unless specifically and expressly stated
in writing by us (such as in a Quote), any services required to remediate
issues caused by your failure to follow our Advice, or your unauthorized
modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum
Requirements (defined below), are out-of-scope.
i.
Co-Management. In
co-managed situations (e.g., where you have
designated other vendors or personnel, or "Co-Managed Providers," to provide
you with services that overlap or conflict with the Services provided or
facilitated by us), we will endeavor to implement the Services in an efficient
and effective manner; however, (a) we will not be responsible for the acts or
omissions of Co-Managed Providers, or the remediation of any problems, errors,
or downtime associated with those acts or omissions, and (b) in the event that
a Co-Managed Provider's determination on an issue differs from our position on
a Service-related matter, we will yield to the Co-Managed Provider's
determination and bring that situation to your attention. In co-managed
situations, Client hereby agrees to
indemnify and hold us harmless from and against any and all Environment-related
issues, errors, downtime, exploitations, and/or vulnerabilities (collectively,
"Environment Issues"), as well as any damages, expenses, costs, fees, charges,
occurrences, obligations, claims, and causes of action arising from Environment
Issues, where the Environment Issues cannot directly and unambiguously be
traced back to any wrongdoing by DandyIT.
ii.
Prioritization. All Services will be implemented
and/or facilitated (as applicable) in a scheduled and prioritized manner as we
determine reasonable and necessary. Exact commencement or start dates may vary
or deviate from the dates we state to you depending on the Services being
provided and the extent to which prerequisites (if any), such as transition or
onboarding activities, must be completed.
iii.
Modifications. To avoid a delay or
negative impact on the Services, we strongly recommend that you refrain from
modifying or moving the Environment, or installing software in the Environment,
unless we expressly authorize such activity. In all situations (including those
in which we are co-managing an Environment with your Co-Managed Provider as
described above), we will not be responsible for changes to the Environment
that are not authorized by us or any issues or errors that arise from those
changes.
b. Third Party Support. If, at our discretion, a hardware or software issue
requires vendor or OEM support, we may contact the vendor or OEM (as
applicable) on your behalf and invoice you for all fees and costs involved in
that process ("OEM Fees"). If OEM Fees are anticipated in advance, we will endeavor
to obtain your permission before incurring such expenses on your behalf unless
exigent circumstances require us to act otherwise. We do not warrant or
guarantee that the payment of OEM Fees will resolve any particular problem or
issue, and it is understood that the resolution process can sometimes require
the payment of OEM Fees to narrow (or potentially eliminate) potential issues.
c. Authorized
Contact(s). We will be entitled to rely on any directions or consent provided by
your personnel or representatives who you designate to provide such directions
or consent ("Authorized Contacts"). If no Authorized Contact is identified in
an applicable Quote or if a previously identified Authorized Contact is no
longer available to us, then your Authorized Contact will be the person (i) who
accepted the Quote, and/or (ii) who is generally designated by you during our
relationship to provide us with direction or guidance. We will be entitled to
rely upon directions and guidance from your Authorized Contact until we are
affirmatively made aware of a change of status of the Authorized Contact. If
your change is provided to us in writing (physical document or by email), then
the change will be implemented within two (2) business days after the first
business day on which we receive your change notice. If your change notice is
provided to us in person or by telephone (live calls only), the change will be
implemented on the same business day on which the conversation takes place. Do not
use a ticketing system or help desk request to notify us about the change of an
Authorized Contact; similarly, do not leave a recorded message informing us of
a change to your Authorized Contact. We reserve the right but not the
obligation to delay the Services until we can confirm the Authorized Contact's
authority within your organization.
d. Access. You hereby
grant to us and our designated Third Party Providers the right to monitor,
diagnose, manipulate, communicate with, retrieve information from, and
otherwise access the Environment solely as necessary to enable us or those
providers, as applicable, to provide or facilitate the Services. Depending on
the Service, we may be required to install one or more software agents into the
Environment through which such access may be enabled. It is your responsibility
to secure, at your own cost and prior to the commencement of any Services, any
necessary rights of entry, licenses (including software licenses), permits or
other permissions necessary for DandyIT or applicable Third Party Providers to provide
or facilitate the Services to you. Proper and safe environmental conditions
must always be provided and assured by you. DandyIT shall not be required to engage in any
activity or provide or facilitate any Services under conditions that pose or
may pose a safety or health concern to any personnel, or that would require
extraordinary or non-industry standard efforts to achieve.
e. Ongoing Requirements. Everything in the Environment
must be genuine and licensed, including all hardware, software, etc. If we ask for proof of authenticity and/or
licensing, you must provide us with such proof.
If we require certain minimum hardware or software requirements
("Minimum Requirements"), you agree to implement and maintain those Minimum
Requirements as an ongoing requirement of us providing the Services to
you.
f. Response. Our response to issues relating to
the Services will be handled in accordance with the provisions of the Quote or,
if applicable, Services Guide. In no
event will we be responsible for delays in our response or our provision of
Services during (i) those periods of time covered under the Transition
Exception (defined below), or (ii) periods of delay caused by Scheduled Down
Time, Client-Side Downtime, Vendor-Side Downtime (all defined below). or (iii)
periods in which we are required to suspend the Services to protect the
security or integrity of the Environment or our equipment or network, or (iv)
delays caused by a force majeure event.
iv.
Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime means the
period of downtime during which we perform scheduled maintenance or adjustments
to the Environment or to our network or systems. Scheduled Downtime will generally not occur Monday
through Friday between the hours of 9:00 AM and 5:00 PM (local time in your
jurisdiction) without your authorization or unless exigent circumstances require
us to perform emergency maintenance or related activities. We will use our best efforts to provide you with at least
twenty-four (24) hours of notice prior to Scheduled Downtime.
v.
Client-Side Downtime. We will not be responsible under any circumstances for any delays or
deficiencies in the provision of, or access to, the Services to the extent that
such delays or deficiencies are caused by your actions or omissions, or by your
Co-Managed Provider's acts or omissions ("Client-Side Downtime"). Client-Side
Downtime includes, but is not limited to, any period during which we require
your participation, or we require information, directions, or authorization
from you but cannot reach your Authorized Contact(s).
vi.
Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or
deficiencies in the provision of, or access to, the Services or any expenses or
costs to the extent that such delays, deficiencies, costs, or expenses are
caused by Third Party Providers, third party licensors, or "upstream" service
or product vendors.
vii.
Transition Exception. You acknowledge and agree
that for the first forty-five (45) days following the commencement date of any
Service, as well as the entirety of any period during which we are performing
off-boarding-related services (e.g., assisting you in the transition of
the Services to another provider, terminating a service, etc.), any response
time commitments previously provided to you will not apply to us, and it is
understood that there may be unanticipated downtime or delays related to those
activities (the "Transition Exception").
FEES; PAYMENT
a. Fees. You agree to pay the fees, costs, and expenses charged by us for the
Services in accordance with the amounts, methods, restrictions, and schedules described
in each Quote and the Services Guide ("Fees"). In addition to the Fees, you are
responsible for any miscellaneous costs and expenses (not to exceed $250/month
without your prior consent) that we incur in providing or facilitating the
Services to you ("Miscellaneous Expenses").
Miscellaneous Expenses will generally appear as a line item entry on
your invoice(s) and may include, for example, small device purchases such as
delivery/postal/courier costs, data migration tools, and registration/service
initiation fees charged by Third Party Providers. You are also responsible for
all freight, insurance, and taxes (including but not limited to import or
export duties, sales, use, value add, and excise taxes). If you qualify for a
tax exemption, you must provide us with a valid certificate of exemption or
other appropriate proof of exemption.
b. Nonpayment. Fees that remain unpaid for more than thirty (30) days when
due will be subject to interest on the unpaid amount(s) from the due date until
and including the date payment is received, at the lower of either 1.5% per
month or the maximum allowable rate of interest permitted by applicable law. We
reserve the right, but not the obligation, to suspend part or all the Services
without prior notice to you if any portion of undisputed fees are not timely paid.
Monthly or recurring charges (if applicable) will continue to accrue during any
period of suspension. Notice of disputes
related to Fees must be received by us within sixty (60) days after the date on
which an applicable invoice is delivered to you, otherwise you waive your right
to dispute the Fee thereafter. We reserve the right to charge a reasonable
reconnect fee (of no more than 10% of your monthly recurring fees) if we
suspend the Services due to your nonpayment.
c. Minimum Monthly Fees. The initial Fees indicated in the Quote for recurring services are
the minimum monthly fees ("MMF") charged to you during the term. You agree that the amounts paid by you under
the Quote will not drop below the MMF regardless of the number of users or
devices to which the Services are directed or applied, unless we agree to the
reduction. All modifications to the
amount of hardware, devices, or authorized users under the Quote (as
applicable) must be in writing and accepted by both parties.
d. Increases. We reserve the right to increase our monthly
recurring fees by reflecting the increase on your monthly invoices. Unless
otherwise indicated in a Quote, increases will be calculated as the greater of five percent
(5%) of the monthly recurring labor fees or the Consumer Price Index for Urban
Wage Earners and Clerical Workers (CPI-W) as of the date of the increase. If a single increase in a calendar year or all such
increases, in the aggregate, in a calendar year is/are more than ten percent (10%)
of the fees charged for the same Services in the prior calendar year, then you
will be provided with a sixty (60) day opportunity to terminate the Services by
providing us with written notice of termination ("Termination Option Period"). If
you timely terminate the Services during the Termination Option Period, you
will be responsible for the payment of all fees that accrue up to the
termination date and all pre-approved, non-mitigatable expenses that we
incurred in our provision of the Services through the date of termination (such
as "per seat licensing costs", as discussed below). Your continued acceptance or use of the
Services after the Termination Option Period will indicate your acceptance of
the increased fees. Pass Through Increases (described in the "Scope" section,
above) are independent of any increases to our monthly recurring fees and will
not be included in the ten percent calculation described in this paragraph.
e. Method of Payments. The fees listed in a Quote assume that all payments will be paid in
cash by electronic transfer (i.e., ACH). If you desire to pay by credit card, then we reserve the right to charge a
convenience fee equal to the actual costs we incur to accept your credit card,
which will not be more than four percent (4%) of the amount invoiced. When enrolled in an ACH payment processing method, you
authorize us to electronically debit your designated checking or savings
account for any payments due under the Quote.
This authorization will continue until otherwise terminated in writing
by you. We will apply a $20.00 service
charge (or the maximum amount permitted by law, whichever is less) to your
account for any electronic debit that is returned unpaid due to insufficient
funds or due to your bank's electronic draft restrictions.
f. Expenses. Any costs or
expenses that we incur while providing the Services during a national, state,
or local emergency or during a period in which there are fuel, manpower, or
other national or local shortages ("State of Emergency") will be invoiced and
payable by you. By way of example, such expenses may include incremental
increases in the cost of gasoline or electrical power, or the purchase of
health or safety equipment reasonably necessary to provide or facilitate the
Services to you.
LIMITED WARRANTIES; LIMITATIONS OF LIABILITY
a.
Hardware / Software Purchases. All equipment, machines, hardware, software, peripherals, or
accessories purchased through DandyIT ("Third Party Products") are generally nonrefundable once the item is ordered
from DandyIT's third-party provider or reseller.
If you desire to return a Third Party Product, then the third-party provider's
or reseller's return policies will apply. We do not guarantee that Third Party
Products will be returnable, exchangeable, or that re-stocking fees can or will
be avoided, and you agree to be responsible for paying all re-stocking or
return-related fees charged by the third-party provider or reseller. We will
use reasonable efforts to assign, transfer and facilitate all warranties (if
any) and service level commitments (if any) for the Third Party Products to
you, but will have no liability whatsoever for the quality, functionality, or
operability of any Third Party Products, and we will not be held liable as an
insurer or guarantor of the performance, uptime or usefulness of any Third
Party Products. You will be responsible for all fees and costs (if any) charged
for warranty-related service. All Third
Party Products are provided "as is" and without any warranty whatsoever as
between DandyIT and you (including but not limited to
implied warranties).
b.
Liability
Limitations. This
paragraph limits the liabilities arising from the Services and is a
bargained-for and material part of our business relationship with you. You acknowledge and agree that DandyIT would not provide any Services, or
enter into any Quote or this Agreement, unless DandyIT could rely on the limitations
described in this paragraph. In no event will either party be liable for any
indirect, special, exemplary, consequential, or punitive damages, such as lost
revenue, loss of profits (except for fees due and owing to DandyIT), savings, or other indirect or
contingent event-based economic loss arising out of or in connection with the
Services, this Agreement, any Quote, or for any breach hereof or for any
damages caused by any delay in furnishing Services under this Agreement or any
Quote, even if a party has been advised of the possibility of such damages;
however, amounts you owe us under this Agreement, reasonable attorneys' fees
awarded to a prevailing party (as described below), your indemnification
obligations, and any amounts due and payable pursuant to the non-solicitation
provision of this Agreement shall not be limited by the foregoing limitation.
Except for the foregoing exceptions, a responsible party's ("Responsible
Party's") aggregate liability to the other party ("Aggrieved Party") for
damages from any and all claims or causes whatsoever, and regardless of the
form of any such action(s), that arise from or relate to this Agreement
(collectively, "Claims"), whether in contract, tort, indemnification, or
negligence, shall be limited solely to the amount of the Aggrieved Party's
actual and direct damages, not to exceed the amount of fees paid by you
(excluding hard costs for licenses, hardware, etc.) to DandyIT for the specific Service upon which
the applicable claim(s) is/are based during the six (6) month period
immediately prior to the date on which the cause of action accrued, or $10,000,
or the amounts that are actually paid out under a Responsible Party's insurance
policy, whichever is greater. The parties agree that only one of the foregoing financial remedies may
be selected by an Aggrieved Party and once selected, the selected remedy shall
be the sole financial remedy available to the Aggrieved Party to the exclusion
of all other remedies. The foregoing limitations shall apply even if
the remedies listed in this Agreement fail of their essential purpose; however,
the limitations shall not apply to the extent that such limitations are
prohibited under applicable law, or to the extent that the Claims are caused by
a Responsible Party's willful or intentional misconduct, or gross negligence.
Similarly, a Responsible Party's liability obligation shall be reduced to the
extent that a Claim is caused by, or the result of, the Aggrieved Party's
willful or intentional misconduct, gross negligence, or to the extent that the
Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as
applicable) the Claims. Under no circumstances shall DandyIT have any liability
for any claims or causes of action arising from or related to Out of Scope
Services.
c.
Waiver of
Liability for Admin/Root Access. We strongly advise
you to refrain from providing administrative (or "root") access to the
Environment to any party other than DandyIT, as such access by any person other
than a DandyIT employee could make the Environment susceptible to serious security
and operational issues caused by, among other things, human error,
hardware/software incompatibility, malware/virus attacks, and related
occurrences. If you request or require
us to provide any non-DandyIT personnel (i.e., non-DandyIT employees, Co-Managed
Providers, etc.) with administrative or root access to any portion of the
Environment, then you hereby agree to indemnify and hold us harmless from and
against any and all Environment-related issues, downtime, exploitations, and/or
vulnerabilities, as well as any damages, expenses, costs, fees, charges,
occurrences, obligations, claims, and causes of action (collectively "Claims")
arising from or related to any activities that occur, may occur, or were likely
to have occurred in or through the Environment at an administrative or root
level, as well as any issues, downtime, exploitations, vulnerabilities, or
Claims that can reasonably be traced back or connected to activities occurring
at the administrative or root level ("Activities") in the Environment provided,
of course, that such Activities were not performed or authorized in writing by DandyIT.
DandyIT's business records shall be final and determinative proof of whether any
Activities were performed or authorized in writing by DandyIT.
d.
Waiver of
Liability for Legacy Devices. As used herein, "Legacy Device" means a piece of equipment, device,
hardware, or software that is outdated, obsolete, incompatible with
industry-standards, and/or no longer supported by its original manufacturer. Legacy
Devices may cause vulnerabilities in your network, or they may fail from time
to time or cause other parts or processes of the Environment to operate
improperly or (in some cases) fail. Neither we nor any Third Party Provider
will be responsible for the remediation of issues arising from or related to
the existence or use of Legacy Devices in the Environment, and we and our Third
Party Providers will be held harmless from and against all issues, claims, and
causes of action arising from or related to the existence or use of Legacy
Devices in the Environment. We strongly advise you to review your company's
insurance policies to determine the extent to which the existence of Legacy
Devices in the Environment would create an exclusion of insurance coverage in
the event of a security-related incident.
INDEMNIFICATION
Each party (an "Indemnifying Party") agrees to indemnify,
defend, and hold the other party (an "Indemnified Party") harmless from and
against all losses, damages, costs, expenses, or liabilities, including
reasonable attorneys' fees, (collectively, "Damages") that arise from, or are
related to, the Indemnifying Party's breach of this Agreement. The Indemnified
Party will have the right, but not the obligation, to control the intake,
defense and disposition of any claim or cause of action for which indemnity may
be sought under this section. The Indemnifying Party shall be permitted to have
counsel of its choosing participate in the defense of the applicable claim(s);
however, (i) such counsel shall be retained at the Indemnifying Party's sole
cost, and (ii) the Indemnified Party's counsel shall be the ultimate determiner
of the strategy and defense of the claim(s) for which indemnity is provided. No
claim for which indemnity is sought by an Indemnified Party will be settled
without the Indemnifying Party's prior written consent, which shall not be
unreasonably delayed or withheld.
TERM; TERMINATION
Please note: This section contains important provisions relating to the automatic
renewal of managed services; please review this section, as well as the terms
of your Quote, carefully. There are several dates
of which you should be aware, including the effective/termination dates of this
Agreement and the effective/termination dates of the Services under a
Quote. Each Quote will have its own term
and will be terminated only as provided in this Agreement or as provided in the
Quote or Services Guide.
a.
This Agreement. This Agreement applies to all Services
and is effective as of the date on which we provide or facilitate a Service to you
or on the date on which you accept a Quote, whichever is earlier ("Effective
Date"). This Agreement will terminate
automatically (i) if you or we terminate this Agreement For Cause (described
below), or (ii) thirty (30) days after the last date on which we have provided
the Services to you or facilitated the Services for you (as applicable). Upon the termination of this Agreement or
Services under a Quote, all Services will immediately and permanently cease;
however, the termination of this Agreement or Services under a Quote shall not change
or eliminate any fees that accrued and/or were payable to us prior to the date
of termination, all of which shall be paid by you. Please note, this Agreement shall not be terminated by either party without
cause if Services are in progress under a Quote.
b.
Term. The term of the Services will be as indicated in the applicable Quote
and Services Guide. The termination of Services under one Quote shall not, by
itself, cause the termination of (or otherwise impact) this Agreement or the
status or progress of any other Services between the parties. Please note, unless otherwise
expressly stated in the Quote, the Services in each Quote automatically renew
(please see "Auto-Renewal" section below).
Moreover, regardless of the reason for termination, you agree to pay all
Access Licensing-related fees as described in the Miscellaneous section, below.
c.
Termination Without Cause. Unless otherwise indicated in the Quote or otherwise
permitted under this Agreement, no party will terminate this Agreement without
cause if, on the date of termination, Services are in progress. In addition, no
party will terminate a Quote without cause prior to the Quote's natural (i.e.,
specified) expiration or termination date. (By way of example: If a Quote
provides for an annual service, then the Services under that Quote cannot be
terminated without cause prior to the expiration of one year). If you terminate
the Services under a Quote without cause and without DandyIT's consent, then you agree to be
responsible for paying the termination fee described in the "Termination for
Cause" section, below.
c)
d.
Termination For Cause. In the event that one party (a "Defaulting Party") commits a material
breach under a Quote, Services Guide, or under this Agreement, the
non-Defaulting Party will have the right, but not the obligation, to terminate
immediately the Services under the relevant Quote (a "For Cause" termination)
provided that (i) the non-Defaulting Party has notified the Defaulting Party of
the specific details of the breach in writing, and (ii) the Defaulting Party
has not cured the default within twenty (20) days (ten (10) days for
non-payment by Client) following receipt of written notice of breach from the
non-Defaulting Party.
i) Remedies for Early Termination.
If DandyIT terminates this Agreement or any Quote
For Cause, or if you terminate any Services under a Quote without cause prior
to such Quote's expiration date, then DandyIT shall be entitled to receive, and you hereby agree to pay to us, all
amounts that would have been paid to DandyIT had this Agreement or Quote (as applicable) remained in full effect,
calculated using the fees and costs in effect as of the date of termination
("Termination Fee"). If you terminate this Agreement or a Quote For Cause, then
you will be responsible for paying only for those Services that were delivered properly
and accepted by you up to the effective date of termination, as well as
per-seat licensing fees (described below), and nothing more.
ii)
Service Tickets. Given the vast number of
interactions between hardware, software, wireless, and cloud-based solutions, a
managed network may occasionally experience disruptions and/or downtime due to,
among other things, hardware/software conflicts, communication-related issues,
obsolete equipment, and/or user error ("Conflicts"). We cannot and do not
guarantee that such Conflicts will not occur, and you understand and agree that
the number of service tickets submitted by you is not, by itself, an indication
of default by DandyIT.
e.
Client Activity as a Basis for Termination. If you or any of your staff,
personnel, contractors, or representatives engages in any unacceptable act or
behavior that renders it impracticable, imprudent, or unreasonable to provide or
facilitate the Services to you and the activity does not cease after we provide
notice of the issue(s) to you, then in addition to DandyIT's other rights under this Agreement, DandyIT will have the right upon providing
you with ten (10) days prior written notice, to terminate this Agreement or the
applicable Quote For Cause.
f.
Consent. You and we may mutually consent, in writing, to
terminate a Quote or this Agreement at any time.
g.
Auto-Renewal. Unless otherwise expressly stated in the Quote, the term of any managed
Service that is provided to you on an ongoing and recurring basis and which is invoiced
monthly (a "Managed Service") will, unless terminated earlier as per this
Agreement, automatically renew for contiguous terms equal to the initial term
of the Managed Service unless either party notifies the other of its intention
to not renew the Managed Service in writing (email is sufficient for this
purpose) no less than thirty (30) days before the end of the then-current
Managed Service term. For the purposes of
clarity, the term of non-Managed Services (such as one-time projects, break/fix
assignments, temporary, non-recurring services, etc.) is not subject to
auto-renewal.
h.
Equipment / Software Removal. Upon termination of this Agreement or applicable Quote for any
reason, you agree to return to us all DandyIT-supplied equipment (such as equipment provided
under a hardware-as-a-service paradigm). If any of the equipment is missing, broken or damaged (normal
wear and tear excepted) or any DandyIT-supplied software is missing, we will have the right to invoice you
for, and you hereby agree to pay immediately, the full replacement value of all
missing or damaged items.
i.
Software Agents. Certain services may
require the installation of software agents in the Environment ("Software
Agents"). Unless we expressly direct you to do so, you will not remove or
disable, or attempt to remove or disable, any Software Agents. Doing so without our guidance may make it
difficult or impracticable to remove the Software Agents, which could result in
network vulnerabilities and/or the continuation of license fees for which you
will be responsible, and/or the requirement that we remediate the situation at
our then-current hourly rates, for which you will also be responsible.
j.
Transition; Deletion of Data. If you request our assistance to transition away from our services, we will provide such
assistance if (i) all fees due and owing to us are paid to us in full prior to DandyIT providing its assistance to you, and
(ii) you agree to pay our then-current hourly rate for such assistance, with up-front
amounts to be paid to us as we may require. For the purposes of clarity, it is
understood and agreed that the retrieval and provision of passwords, log files,
administrative server information, or conversion of data are transition
services, and are subject to the preceding requirements. You also understand
and agree that any software configurations that we custom create or program for
you are our proprietary information and shall not be disclosed to you under any
circumstances. Unless otherwise expressly stated in a Quote
or Services Guide or prohibited by applicable law, we will have no obligation
to store or maintain any Client data in our possession or control following the
termination of this Agreement or the applicable Services.
CONFIDENTIALITY
a.
Defined. Confidential Information means all non-public
information provided by one party ("Discloser") to the other party
("Recipient"), including but not limited to customer-related data, customer
lists, internal documents, internal communications, proprietary reports and
methodologies, and related information. Confidential
Information will not include information that: (i) has become part of the
public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to
the Recipient prior to disclosure by the Discloser, from a third party
who is not and was not subject to an obligation of confidentiality or otherwise
prohibited from transmitting such information.
b.
Use. The Recipient will keep the Confidential Information it receives fully
confidential and will not use or disclose such information to any third party
for any purpose except (i) as expressly authorized by the Discloser in writing,
or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as
required by any law, rule, or industry-related regulation.
c.
Due Care. The Recipient will exercise the same degree of care
with respect to the Confidential Information it receives from the Discloser as it
normally takes to safeguard and preserve its own confidential and proprietary
information, which in all cases will be at least a commercially reasonable
level of care.
d.
Compelled Disclosure. If a
Recipient is legally compelled (whether by deposition, interrogatory,
request for documents, subpoena, civil investigation, demand or similar
process) to disclose any of the Confidential Information, and provided that it
is not prohibited by law from doing so, that
Recipient will immediately notify the Discloser in writing of such requirement
so that the Discloser may seek a protective order or other appropriate remedy
and/or waive the Recipient's compliance with the provisions of this Section. The Recipient will use its best efforts, as directed by the Discloser
and at the Discloser's expense, to obtain or assist the Discloser in obtaining any such protective order. Failing the
entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without
liability hereunder, that portion (and only that portion) of the Confidential
Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared
with the Discloser), that the
Recipient is legally compelled to disclose. To the extent that we are required
to expend our resources to comply with a legal requirement concerning your
information (such as a response to a subpoena or court order), then you agree
to pay our then-current hourly rates for all time we expend in that process, as
well as all non-mitigatable hard costs we incur in complying with our legal
requirements.
e.
Additional NDA. In our provision of the
Services, you and we may be required to enter into one or more additional
nondisclosure agreements (each an "NDA") for the protection of a third party's
Confidential Information. In that event, the terms of the NDA will be read in
conjunction with the terms of the confidentiality provisions of this Agreement,
and the terms that protect confidentiality most stringently shall govern the
use and destruction of the relevant Confidential Information. If in the normal
provision of the Services we are in receipt of or otherwise have access to
personal health information (as defined in the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA"), we will be your business associate as
that term is defined under HIPAA and will enter into a mutually agreeable Business
Associate Agreement.
OWNERSHIP
ARBITRATION
Except for
collections actions to recover fees due to us ("Collections") or any amounts
that qualify for small claims court jurisdiction in our local jurisdiction, all disputes, claims, or controversies arising from or
related to this Agreement, including the determination of the scope or
applicability of this agreement to arbitrate, shall be settled by arbitration
before one arbitrator who is mutually agreed upon by the parties. There is no jury involved in arbitration,
and by agreeing to arbitrate you are agreeing to waive any right you may have
to a trial by a jury. The arbitration shall be
administered and conducted by the American Arbitration Association (the "AAA")
pursuant to the AAA's arbitration rules for commercial disputes (the "Rules"). In the event of any inconsistency between the Rules and the
procedures set forth in this paragraph, the procedures set forth in this
paragraph will control. The arbitrator will be experienced in commercial contracts
and information technology transactions. If the parties cannot agree on an
arbitrator within fifteen (15) days after a demand for arbitration is filed,
the AAA shall select the arbitrator. The arbitration
shall take place in our office unless we agree to a different venue. The
arbitrator will determine the scope of discovery in the matter; however, it is
the intent of the parties that any discovery proceedings be limited to the
specific issues in the applicable matter, and that discovery be tailored to
fulfill that intent. Initially, the cost of the arbitration shall be split
evenly between the parties; however, the party prevailing in the arbitration
shall be entitled to an award of its reasonable attorneys' fees and costs.
MISCELLANEOUS
a. Incident Mitigation Coverage. If an incident occurs for which you intend to
apply for insurance coverage (an "Insurable Incident"), you are advised to
first notify your insurance carrier prior to requesting that we attempt to
remediate the Insurable Incident. Some
insurance policies may require you to use specific solution providers other
than DandyIT to remediate Insurable Incidents, and the use of non-carrier
approved vendors may reduce or nullify your insurance coverage. If you request that we remediate an Insurable
Incident, then you agree that (i) our services will be billed to you, and you
agree to pay for those services, at our then-current hourly rates (unless we
agree otherwise in writing), and (ii) you waive all rights of subrogation for
the Insurable Incidents and we, as well as our insurance carrier(s), will be
held harmless if our efforts negatively impact your insurance coverage.
b. Changes to Services Guide. Services, and the policies
governing the implementation, facilitation, or provision of the Services, may
be further described and governed under our Services Guide (described
above). We reserve the right, and you
hereby agree that we are permitted, to modify our Services Guide (and the
Services themselves) from time to time and at our discretion, to accommodate
changes in the industry and relevant services required under a Quote. You will
be notified of any changes that materially and negatively impact the Services by
email.
c. End User Agreements. Portions of the Services may require
you to accept the terms of one or more third party end user license agreements
(EULAs), third party customer agreements, and/or third party subscription
agreements (collectively, "End User Agreements"). If the acceptance of an End
User Agreement is required for you to receive any Services, then you hereby
grant us permission to accept the applicable agreement(s) on your behalf. You may request a list of all End User
Agreements into which we have entered on your behalf by sending your written
request to us (email is sufficient for this purpose). If an End User Agreement
deviates materially from industry-standards (i.e., contains terms that
are different than those generally offered by similarly situated companies to
end users on an industry-wide basis), then we will bring that situation to your
attention. End User Agreements may contain service levels, warranties and/or
liability limitations different from those contained in this Agreement. You agree to be bound by the terms of all applicable End User Agreements. If, while providing the
Services, you or we are required to comply with an End User Agreement and that
agreement is modified or amended, we reserve the right to modify or amend any
applicable Quote with you to ensure your and our continued compliance with the
terms of the applicable End User Agreement.
d. Devices. You hereby represent and warrant
that we are authorized to access all devices, peripherals and/or computer
processing units, including mobile devices (such as notebook computers, smart phones,
and tablet computers) that are connected to the Environment (collectively,
"Devices"), regardless of whether such Devices are owned, leased, or otherwise
controlled by you. Unless otherwise stated in writing by us, Devices
managed under a Quote will not receive or benefit from the Services while the
devices are powered off, detached from, or unconnected to, the Environment. Client is strongly advised to
refrain from connecting Devices to the Environment where such devices are not
previously known to us and are not expressly covered under a managed service
plan from us ("Unknown Devices"). We will not be responsible for the diagnosis or remediation of any
issues in the Environment caused by the connection or use of Unknown Devices in
the Environment, and we will not be obligated to provide the Services to any
Unknown Devices.
e. Insurance Forms. If we assist in the preparation or
completion of any insurance-related forms, questionnaires, or similar third
party documentation, you understand and agree that our responses are based on
our knowledge of your managed IT environment as of the date of those
responses. To the extent that your
managed IT environment has been modified by you or any third party without our
knowledge, and/or to the extent that you have circumvented, disabled, or failed
to implement any features or functions of any of the Services we provide or
facilitate for you (collectively, "Unauthorized Activity"), our responses may
be incorrect or obsolete and should not be relied upon. You agree to hold us
harmless and indemnify us against any against any claims, expenses, and fees
(including reasonable attorneys' fees) that we incur because of any
Unauthorized Activity or the inaccuracy of our responses where such
inaccuracies arise from, or are based on, Unauthorized Activity.
f. Equipment. The information on equipment returned to us at the end of the Services
will be deleted; however, we cannot and do not guarantee that deleted
information will be rendered irrecoverable under all circumstances. For that reason, we strongly recommend that
you permanently delete any personal, confidential, and/or highly-sensitive
information from such equipment before returning that equipment to us.
g.
Title to Purchased
Hardware. Title to hardware, devices, or
accessories purchased through us ("Purchased Hardware") will not pass to Client
until we have received, in full, all applicable fees for the Purchased
Hardware. Notwithstanding the foregoing, upon Client's receipt (at its delivery
location) or possession of the Purchased Hardware, regardless of whether all
purchase-related fees have been paid, Client is fully responsible for all risk
of loss and/or damage to the Purchased Hardware.
h.
Compliance; No Legal Advice. Unless otherwise expressly stated in a Quote, the
Services are not intended, and will not be used, to bring you into full
regulatory compliance with any rule, regulation, or requirement that may be
applicable to your business or operations. Depending on the Services provided,
the Services may aid your efforts to fulfill regulatory compliance; however, unless
otherwise explicitly stated in the Quote, the Services are not (and should not
be used as) a compliance solution. Neither the results of any Service nor
any proposed or suggested remediation, action, or response plan ("Plan") are
legal advice and shall not be construed as such. Client is responsible for obtaining
its own legal representation related to any of Client's industry, regulatory,
and/or statutory-related requirements ("Applicable Laws"). Client is advised to
consult its own legal resources before relying on any advice or recommendations
made by DandyIT that pertain to or impact Applicable Laws. Client understands that any Plan provided to
Client will be based on the status of the applicable rules/laws in place at the
time that the Plan is delivered, and subsequent changes to the status or
content of any applicable laws/rules may render the Plan obsolete.
i)
Compliance-as-a-Service. If you subscribe to a
compliance-as-a-service ("CaaS") or similar type of service (as indicated in a
Quote), then you understand and agree (a) you must provide full, complete, and
accurate information to us and/or our designated Third Party CaaS provider, (b)
the CaaS-related instructions and recommendations only apply to your business
as of the date that such instructions and recommendations ("CaaS Results") are
provided. Subsequent changes in relevant
law may render the CaaS Results inaccurate or obsolete, in which event you
would be required to update or re-enroll in CaaS services, at your cost, to
ensure continued compliance.
i. Disclosure. You warrant and represent that you know of no law or
regulation governing your business that would impede or restrict our provision
of the Services, or that would require us to register with, or report our
provision of the Services (or the results thereof), to any government or
regulatory authority. You agree to promptly notify us if you become subject to
any of the foregoing which, in our discretion, may require a modification to
the scope or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law
(such as HIPAA), then you agree to identify to us any data or information
subject to protection under that law prior to providing such information to us
or, as applicable, prior to giving us access to such information.
j. No Fiduciary. The scope of our relationship with you is limited to the specific
Services provided to you; no other relationship, fiduciary or otherwise, exists
or will exist between us. If, by operation of law, a fiduciary relationship is
imposed or presumed for out-of-scope services, you hereby waive that
relationship and any fiduciary obligations thereunder.
k. Virtual Security. You understand and agree that no security solution is one hundred
percent effective, and any security paradigm may be circumvented and/or
rendered ineffective by certain malicious actors, intentional (or
unintentional) actions, or malware such as certain ransomware or rootkits that
were unknown to the malware prevention industry at the time of infection,
and/or which are downloaded or installed into the Environment. We do not
warrant or guarantee that any security-related service, product, or solution
offered, implemented, or facilitated by us will be capable of detecting, avoiding,
quarantining, or removing all malicious code, spyware, malware, etc., or that
any data deleted, corrupted, or encrypted by any of the foregoing ("Impacted
Data") will be recoverable. Unless otherwise expressly stated in a Quote, the
recovery of Impacted Data is out-of-scope. Moreover,
unless expressly stated in a Quote or Services Guide, we will not be
responsible for activating multifactor authentication in any application in or
connected to the Environment. You are strongly advised to (i) educate your
employees to properly identify and react to "phishing" activity (i.e.,
fraudulent attempts to obtain sensitive information or encourage behavior by
disguising oneself as a trustworthy entity or person through email), and (ii)
obtain insurance against cyberattacks, data loss, malware-related matters, and
privacy-related breaches, as such incidents can occur even under a "best
practice" scenario. Unless
a malware-related incident is caused by our intentionally malicious behavior or
our gross negligence, we are held harmless from any costs, expenses, or damages
arising from or related to such incidents.
l. Physical Security. You agree to
implement and maintain reasonable physical security for all managed hardware
and related devices in your physical possession or control. Such security
measures should include (i) physical barriers, such as door and cabinet locks, designed
to prevent unauthorized physical access to protected equipment, (ii) an alarm
system to mitigate and/or prevent unauthorized access to the premises at which
the protected equipment is located, (iii) fire detection and retardant systems,
and (iv) periodic reviews of personnel access rights to ensure that access
policies are being enforced, and to help ensure that all access rights are
correct and promptly updated.
m.
Updates. Patches and
updates to hardware and software ("Updates") are created and distributed by
third parties—such as equipment or software manufacturers—and may be supplied
to us from time to time for installation into the Environment. If Updates are
provided to you as part of the Services, we will implement and follow the
manufacturers' recommendations for the installation of Updates; however, (i) we
do not warrant or guarantee that any Update will perform properly, (ii) we will
not be responsible for any downtime or losses arising from or related to the
installation, use, or inability to use any Update, (iii) we will not be
responsible for the remediation of any device or software that is rendered
inoperable or non-functional due to the Update, and (iv) we reserve the right,
but not the obligations, to refrain from installing an Update until we have determined,
in our reasonable discretion, that the Updates will be compatible with the
configuration of the Environment and materially beneficial to the features or
functionality of the affected software or hardware.
n.
No Poaching. Each party (a "Restricted Party") acknowledges and agrees
that during the term of this Agreement and for a period of one (1) year
following the termination of this Agreement, the Restricted Party will not,
individually or in conjunction with others, directly or indirectly hire or
retain the services of any of the other party's employees with whom the
Restricted Party worked (each, a "Restricted Employee"), or solicit, induce, or
encourage a Restricted Employee to discontinue or reduce the scope of the
Restricted Employee's business relationship with the other party. In the event
of a violation of the terms of the restrictive covenants in this section, the
parties acknowledge and agree that the damages to the other party would be
difficult or impracticable to determine, and in such event, if the Restricted
Party does not promptly cure the situation after receiving notice of the breach
from the other party, then the Restricted Party will pay the other party as
liquidated damages and not as a penalty an amount equal to one hundred thousand
dollars ($100,000) or the amount that the other party paid to that employee in
the one (1) year period immediately preceding the date on which the Restricted
Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing,
any solicitation or attempted solicitation for employment directed to a party's
employees by the Restricted Party will be deemed to be a material breach of
this Agreement, in which event the affected party shall have the right, but not
the obligation, to terminate this Agreement or any then-current Quote
immediately For Cause.
o.
Collections. If we are required to send your account to Collections or
to start any Collections-related action to recover undisputed fees, we will be
entitled to recover all costs and fees we incur in the Collections process
including but not limited to reasonable attorneys' fees and costs.
p.
Assignment. Neither this Agreement nor any Quote may be assigned or
transferred by a party without the prior written consent of the other party. 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, a party 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 its business or
any other transaction in which ownership of more than fifty percent (50%) of its
voting securities are transferred; provided, however, that the assignee
expressly assumes, in writing, the assignor's obligations hereunder.
q.
Amendment. This Agreement and any Quote may be amended only by a written
document (email or similar electronic documents are sufficient for this
purpose) that is initiated by us, and that specifically refers to this
Agreement or the Quote being amended and is affirmatively accepted in writing (email
or electronic signature is acceptable) by you.
r.
Time
Limitations. The parties mutually agree that, unless
otherwise prohibited by law, any action for any matter arising out of or
related to any Service (except for issues of nonpayment by Client) must be
commenced within six (6) months after the cause of action accrues or the action
is forever barred.
s.
Severability. If any provision in this Agreement, any Quote, or the Services
Guide is declared invalid by a court of competent jurisdiction, such provision will
be ineffective only to the extent of such invalidity or unenforceability so
that the remainder of that provision and all remaining provisions will be valid
and enforceable to the fullest extent permitted by applicable law.
t.
Other Terms. We will not be bound by any terms or conditions printed
on any purchase order, invoice, memorandum, or other written communication
supplied by you unless we have expressly acknowledged the other terms and,
thereafter, expressly and specifically accepted such other terms in writing.
u.
No Waiver. The failure of either party to enforce or insist upon
compliance with any of the terms and conditions of this Agreement, the
temporary or recurring waiver of any term or condition of this Agreement, or
the granting of an extension of the time for performance, will not constitute
an Agreement to waive such terms with respect to any other occurrences.
v.
Merger. This Agreement coupled with the Quote and the Services
Guide sets forth the entire understanding of the parties and supersedes all
prior agreements, arrangements or understandings related to the Services;
however, any payment obligations that you have or may have incurred under any
prior or superseded agreement are not nullified by this Agreement and
remain in full force and effect. No representation, promise, inducement, or
statement of intention has been made by either party which is not embodied
herein. We will not be bound by any of our agents' or employees'
representations, promises or inducements unless they are explicitly set forth
in this Agreement or in a Quote or Services Guide. Marketing materials and promotional
information available at our website (including but not limited to Service
descriptions, potential results, customer endorsements, etc.) are for
illustrative or educational purposes only and are not intended to create, and
will not be interpreted as creating, additional duties, requirements, service
levels, or promises or guarantees of specific Services or specific results.
w.
Force Majeure. Neither party will be liable to the other party for delays
or failures to perform its obligations because of circumstances beyond such
party's reasonable control. Such circumstances include, but will not be limited
to, any intentional or negligent act committed by the other party, or any acts
or omissions of any governmental authority, natural disaster, act of a public
enemy, acts of terrorism, riot, sabotage, 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 software, and acts of God.
x.
Survival. The provisions contained in this Agreement that by their
context are intended to survive termination or expiration of this Agreement will
survive. If any provision in this Agreement is deemed unenforceable by
operation of law, then that provision shall be excised from this Agreement and
the balance of this Agreement shall be enforced in full.
y.
Governing
Law; Venue. This Agreement will be governed by, and
construed according to, the laws of the state of Arizona. You hereby
irrevocably consent to the exclusive jurisdiction and venue of Pinal County, Arizona,
for all non-arbitrable claims and causes of action with us that arise from or relate
to this Agreement.
z.
No Third
Party Beneficiaries. The Parties
have entered into this Agreement solely for their own benefit. They intend no
third party to be able to rely upon or enforce this Agreement or any part of
this Agreement.
aa.
Usage in
Trade. It is understood and agreed that no usage of trade or other
regular practice or method of dealing between the Parties to this Agreement will
be used to modify, interpret, or supplement in any manner the terms of this
Agreement.
bb.
Notices;
Writing Requirement. Where notice is
required to be provided to a party under this Agreement, such notice may be
sent by postal mail, overnight courier, or email as follows: notice will be
deemed delivered three (3) business days after being deposited in postal mail,
first class mail, certified or return receipt requested, postage prepaid, or
one (1) day following delivery when sent by FedEx, DHL, or other overnight
courier, or one (1) day after notice is delivered by email. Notice sent by
email will be sufficient only if the message is sent to the last known email
address of the recipient or such other email address that is expressly
designated by the recipient for the receipt of legal notices. All electronic
documents and communications between the parties, including email, will satisfy
any "writing" requirement under this Agreement.
cc.
Independent Contractor. DandyIT is an independent contractor, and is not your employer,
employee, partner, or affiliate.
dd.
Contractors. Should we elect to use contractors to provide onsite
services to you (such as the installation of equipment or the installation of
software on local devices), we will guarantee that work as if we performed that
work ourselves. For the purposes of clarity, you understand and agree that
Third Party Services are resold to you and, therefore, are not contracted or
subcontracted services; and Third Party Providers are not our contractors or
subcontractors.
ee.
Data & Service Access. Some of the Services may be
provided by persons outside of the United States and/or your data may
occasionally be accessed, viewed, or stored on secure servers located outside
of the United States. You agree to notify us if your company requires us to modify
these standard service provisions, in which case additional (and potentially
significant) costs will apply.
ff. Access Licensing. One or more of the Services may require us to
purchase certain "per seat" or "per device" licenses (often called "Access
Licenses") from one or more Third Party Providers. (Microsoft "New Commerce
Experience" licenses as well as Cisco Meraki "per device" licenses are examples
of Access Licenses.) Access Licenses cannot be canceled once they are purchased
and often cannot be transferred to any other customer. For that reason, you
understand and agree that regardless of the reason for termination of the
Services, fees for Access Licenses are non-mitigatable and you are required to
pay for all applicable Access Licenses in full for the entire term of those
licenses. Provided that you
have paid for the Access Licenses in full, you will be permitted to use those
licenses until they expire.
gg. Critical Vendor Status. If you declare bankruptcy, or there is an
assignment for the benefit of creditors, then you agree that we are a "critical
vendor" and you will take all steps necessary to have us designated as a
"critical vendor" entitled to payment and all other statuses and priorities
afforded to any of your other critical vendors.
hh.
Counterparts. The parties intend to sign, accept and/or deliver any
Quote, this Agreement, or any amendment in any number of counterparts, and each
will be deemed an original and all of which, when taken together, will be
deemed to be one agreement. Each party may sign, accept, and/or deliver any
Quote, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a
handwritten signature) or by reference (as applicable).
Last Updated: April 2024