Master Service Agreement – Co-Managed
1. Hours of Service: ITECH Solutions shall be available to provide the Services from 8:00 a.m. to 5:00 p.m. in the Clients local time zone. (Supported across all four domestic US time zones – Hawaii, Pacific, Mountain, Central, Eastern) Monday through Friday and excluding holidays. Holidays are Memorial Day, Labor Day, Independence Day, Thanksgiving Day, the day after Thanksgiving, Christmas Eve Day, Christmas Day, and New Year's Day. ITECH Solutions will make commercially reasonable efforts to respond to emergency requests However, specific response times outside of normal business hours may vary as detailed in the Service Level Agreement for emergency Service request procedures.
2. Payment for Services:
A. Service Charges: Client agrees to pay ITECH Solutions fees in accordance with this Agreement and the schedule and pricing set forth in this Agreement and corresponding proposals, as modified and documented from time to time by the Parties, and for any changes in the scope or the Services provided Client agrees to pay ITECH Solutions additional charges that may apply.
B. Agreement Cost Fluctuations: Devices, mailboxes, users and locations may be added (or removed if decommissioned) to the Agreement at any time and will increase (or decrease) at rates outlined in this Agreement or corresponding proposals. Prices for Services a Client chooses to decline are subject to change after 60 days from the date of the Agreement. Any quoted pricing for non-contracted Services are invalid after 60 days of quoting. Services are quoted on proposals with a “minimum water mark” that will act as the minimum unit count for the duration of the proposal term.
C. Payment: Client agrees to allow for automatic credit card charges or ACH direct payment to be processed monthly on the day invoices are due. Client notices to ITECH Solutions of changes in the Services provided must be received in writing at least (7) seven days prior to the billing charge processing date to be incorporated in the next billing cycle.
D. Billing Cycles: Any applicable setup or onboarding fees listed in this Agreement and the first month of any Services are due and payable upon receipt of Invoice unless otherwise stated in corresponding proposal(s). All future recurring monthly invoices are due and payable within 15 days of invoicing. Any charges not disputed by Client in good faith within thirty (30) days of the receipt of an invoice will be deemed approved and accepted by Client. Any amount not paid within fifteen (15) days of the date or each invoice shall be subject to an interest charge equal to the lesser of 1.5% monthly (or the maximum Interest charge permissible under applicable law) and/or a suspension of Services by ITECH Solutions. Project invoices will be pre-approved by Client in writing and due upon receipt of invoice.
E. Projects, Hardware and Software: Client will pay for all hardware and software at the time the order is approved in writing by Client, unless agreed otherwise and documented in writing by both Parties. Hardware and Software will not be delivered to Client without prepayment in full, unless agreed otherwise and documented in writing by both Parties. Electronic billing will be used to immediately collect payment for approved hardware and software purchases. Ownership of perpetual hardware and software shall not pass to the Client until it is paid for in full. Should hardware and software be delivered before full payment, ITECH Solutions reserves the right to repossess said hardware and software should full payment not be received.
F. Travel/Lodging: Travel time and lodging for onsite Services requested by Client are not included in this Agreement. Travel/lodging costs will be quoted upon request.
G. Late Payments: Unless agreed otherwise and documented in writing by both Parties, unexcused late payments by Client may result in suspension or termination of the Services. Reinstatement of the Services, at the option of ITECH Solutions, may result in a re-activation fee equal to one (1) month of current charges of the Services. In addition, frequent late payments may result in Client being moved to a prepayment billing status, where all hardware, software, and Services must be paid upon receipt of invoice. ITECH Solutions reserves the right to suspend Services if payments are not made within thirty (30) days.
H. Incident Response, Disaster Recovery and Security Incident Services: ITECH Solutions offers rapid response to disaster recovery and security breach Services. Disaster recovery and security breach Services will be separately defined as a project and will when feasible be first quoted and approved by Client in writing before performing the disaster recovery and security breach Services. Notwithstanding, Client acknowledges and agrees that by their very exigent nature, quotes for incident responses to any disaster recovery and security breach may be unknown and not subject to an immediate quote before Services are approved by Client, and therefore, those disaster recovery and security breach Services will be billed on a time and materials basis. These Services are performed by a third party cybersecurity firm and are typically paid by insurance policies. Some incident response Services may not have a known up-front cost and may need to be quoted in milestones. If a Client chooses not to use incident response Services ITECH Solutions will provide reasonable efforts (costs not included in Agreement, to be quoted) to remedy the breach but ITECH Solutions will not guarantee full remediation. ITECH Solutions cannot be held liable for any losses or damages related to a zero day vulnerability or security incident.
3. Client Responsibilities: Client agrees to each of the following:
A. Record Keeping and Notifications: It is Client's responsibility to ensure that billing information on record is accurate and up-to-date, including the correct billing address, credit card numbers, and bank account numbers, as applicable. Client is responsible for verifying correct amounts before paying invoices. Paid invoices shall be deemed approved by the Client. Devices and users that are removed by Client without notification in writing and acknowledged by ITECH Solutions will continue to be charged. If Client does not inform ITECH Solutions via written documented communication about a device or user that needs to be removed, ITECH Solutions will not issue a refund for past months because the device/user was being supported during that time.
B. Time Limits: Client is responsible for placing any written time or other restrictions/limits, if appropriate, as to access times or pre-notice by ITECH Solutions to Client before ITECH Solutions logs into a Client’s system before Services are provided by ITECH Solutions and cannot be retroactive. ITECH Solutions shall use best efforts to comply with Client's written time or other restrictions/limits, but ITECH Solutions makes no promises or guarantees in this Agreement that it will be able to comply.
C. Third Party Vendor Support Contracts: Any third party vendor proprietary software or hardware requires support from said vendor in the event there is a proprietary or incompatibility issue. There is no guarantee ITECH Solutions can remedy an issue without a third party vendor support agreement. Third party vendor proprietary software or hardware is defined as a vertical solution specific to an industry or a product/Service that is channel only.
D. Insurance Coverage: Client is expected to carry standard commercial insurance coverage; general liability and cybersecurity insurance to have proper financial insurance protection in the event of a security breach. It is also recommended that the Client carry an umbrella policy.
E. Domain Name: Client shall always maintain control and ownership of its registered domain name, if applicable. Client understands that losing ownership of their domain will cause severe downtime and/or potential downtime. It is recommended that Client uses domain and DNS security Services provided by ITECH Solutions to avoid downtime. Should Client elect to manage their own domain and DNS Services ITECH Solutions shall be released and held harmless by Client from liability for any damages or downtime caused by loss of domain or DNS Services.
F. Software Copyright: ITECH Solutions assumes all information provided by Client including but not limited to software installed on Client’s computers, or software which is delivered by Client to ITECH Solutions for installation on Client’s computers by ITECH Solutions, has been approved for use by the original owner and does not infringe on any owner or manufacturer’s copyright or trademark. Client shall defend, indemnify and hold ITECH Solutions harmless from any and all claims by third Parties which allege infringement on trademark or copyright arising from such use. ITECH Solutions shall not be held liable for Client’s illegal / unauthorized use of software or hardware.
G. Software Reselling and Microsoft Services Agreement: The Client has elected to purchase a license to one or more solutions offered through third party vendors (including Microsoft Office 365). The solution(s) to which Client is purchasing licenses will be listed on monthly invoices. ITECH Solutions can offer the identified solutions through partner agreements with third party vendors. Under these agreements, the third party vendor will provide the applicable solution(s) to the Client, and ITECH Solutions will directly invoice the Client for the fees associated with Client’s use and access of the solution(s). Upon the date of Agreement signature, these Software Reselling and Microsoft Services Agreement terms and conditions shall be incorporated into and governed by this Service Agreement. Any defined term that is used but is not otherwise defined herein shall have the meaning provided for in this Service Agreement.
i. Third Party Product: The Client acknowledges and agrees that each solution is a third party product provided by the third party vendor. ITECH Solutions has no control over third party vendors or over the third party vendors solution’s to be provided to Client. ITECH Solutions makes no warranties or representations of any kind, either express or implied, regarding the functionality or quality of the Solution(s) selected by Client, and Client should look to the warranties provided by the third party vendor regarding the applicable solution(s).
ii. Responsibility: Client acknowledges and agrees that ITECH Solution’s role in the provision of the third party vendor solution is to invoice and collect fees from the Client for its access and use of the solution. Except for invoicing errors for the solution(s) that are the direct result of ITECH Solution’s actions or inactions, the Client agrees that ITECH Solutions shall not be liable and Client shall hold harmless ITECH Solutions from any defects, errors, inaccuracies, or any other problems or issues that are contained in, that relate to, or that may arise relating to the solution. Further, Client agrees that ITECH Solutions shall not be liable and Client shall hold harmless ITECH Solutions from any losses, damages, or other harm that the Client may experience in relation to its use of the solution(s), including, but not limited to, loss or inaccessibility of Client’s data.
iii. Microsoft Services Agreement: Furthermore, the Client has agreed to the Microsoft Services Agreement terms upon the signature date of this Agreement.
H. Agreement Modifications: The terms outlined in this Agreement have been carefully negotiated to protect both the Client and ITECH Solutions. These terms maintain accountability for both Parties to ensure a successful delivery of the Services. Should the Client request changes to this Agreement additional legal review will be needed for approval. The legal review will consist of additional charges that will be paid by the Client, added as an onboarding fee upon execution of the new Agreement.
I. Notice of Regulatory Compliance: Client is responsible for informing ITECH Solutions in writing of any regulatory compliance policies that Client must adhere to. Without written communication of the Clients’ regulatory compliance requirements ITECH Solutions will not be able to include these requirements during the implementation of proper security policies, procedures or compliance audits and reporting.
4. Backup, Continuity and Disaster Recovery Coverage for Servers: ITECH Solutions provides Backup, Continuity and Disaster Recovery Coverage, which Is defined as providing a fail over environment and continuous recovery effort until your server(s) are restored to normal operation. In order to qualify for ITECH Solutions Disaster Recovery Coverage, your environment must comply with the following requirements:
A. Server hardware is under current warranty coverage with the hardware vendor.
B. Server is less than 5 years old.
C. Client network is protected by an ITECH Solutions supported or approved firewall.
E. Server is connected to a working uninterruptable power supply (UPS) device.
G. Server is backed up using hardware and software that ITECH Solutions supports and manages.
H. Under this coverage ITECH Solutions can restore the server to the point of the last successful backup and perform any additional steps necessary to restore the server(s) to normal operation.
I. ITECH Solutions has, or is given access to, all installation media and key codes necessary for proper reinstallation of server.
K. Client understands that the backup software and hardware is not manufactured by ITECH Solutions and therefore will not hold ITECH Solutions liable for any problems consisting of but not limited to; downtime, loss of data, damages to equipment or extra labor costs that occur because of backup software or hardware malfunction.
L. Client understands that if the backup device, computer, or software is powered off or not functioning backups will not perform.
M. Client understands that SaaS applications and cloud data are not backed up by ITECH Solutions unless signed up for a SaaS backup Service.
N. ITECH Solutions will not be held liable for a failed disaster recovery if circumstances surrounding the Client’s server failure meet the following qualifications in whole or in part:
i. Client fails to adhere to all the requirements outlined in the above "Qualifications" section,
ii. Environmental failure events that render hardware unusable.
iii. Force Majeure events beyond ITECH Solutions reasonable control, including but not limited to Acts of God, government regulation, labor strikes, natural disaster, and national emergency.
iv. Any act or omission on the part of any third party other than ITECH Solutions.
5. Term and Termination:
A. Term: This Agreement shall follow a term outlined in accepted proposal agreements to commence on the date that outlined in the accepted proposals and shall automatically renew for successive Term(s) for approved products and services.
B. Early Termination: Either Party may terminate this Agreement as follows:
i. Any termination of this Agreement thereof must be received by ITECH Solutions before 60 days from the subsequent renewal date.
ii. Early termination of this Agreement will require prorated termination fee for remaining balance of Agreement unless otherwise agreed and documented in writing by both Parties.
C. Effect of Termination: Upon termination of this Agreement, ITECH Solutions shall reasonably assist Client in the transition to another vendor selected by Client for up to 30 days after the termination date. ITECH Solutions will remove any Hosted Servers in use by Client, as well as all backups of Hosted Servers, and applicable Managed Services will no longer be performed, without further notice or obligation. As such, Client must transition the stated Services to a new solution provider by the termination date.
6. No Warranty / Disclaimers:
A. ITECH SOLUTIONS IS PROVIDING THE SERVICES AND ACCESS TO THE HOSTED SERVERS ON AN "AS IS," AS AVAILABLE" BASIS.
B. ITECH SOLUTIONS DOES NOT WARRANT THAT THE SERVICES, ACCESS TO THE HOSTED SERVERS OR ANY DELIVERABLES WILL MEET ANY CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY SERVICES, ACCESS TO THE HOSTED SERVERS OR ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY SERVICES, ACCESS TO THE HOSTED SERVERS OR ANY DELIVERABLES WILL BE UNINTERRUPTED 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.
C. EXCEPT FOR THE WARRANTIES AGREED UPON BY BOTH PARTIES IN WRITING, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES MADE BY ITECH, THE SERVICES, ACCESS TO THE HOSTED SERVERS OR ANY DELIVERABLES ARE PROVIDED STRICTLY "AS IS," AND ITECH SOLUTIONS MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE SERVICES, ACCESS TO THE HOSTED SERVERS OR ANY DELIVERABLES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED BY ITECH SOLUTIONS AND ARE EXCLUDED BY THE PARTIES.
D. ANY DAMAGES THAT ITECH SOLUTIONS MAY BE LIABLE TO CLIENT SHALL BE NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. EXCEPT AS MAY BE DONE IN ACCORDANCE WITH SECTION 23 (ENTIRE AGREEMENT and MODIFICATIONS), NO STATEMENT BY ANY ITECH SOLUTIONS EMPLOYEE OR AGENT, ORALLY OR IN WRITING, SHALL SERVE TO CREATE ANY WARRANTY OR OBLIGATION NOT SET FORTH HEREIN OR TO OTHERWISE MODIFY THIS AGREEMENT IN ANY WAY WHATSOEVER.
7. LIMITATION OF LIABILITY:
A. ITECH SOLUTIONS SHALL HAVE NO LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR SERVICES NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT.
B. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUE, USE, DAMAGED OR LOST FILES OR DATA, OR BUSINESS INTERRUPTION, THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES, ACCESS TO THE HOSTED SERVERS OR DELIVERABLES PROVIDED BY ITECH SOLUTIONS, OR ANY MATTER WHATSOEVER, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. IN NO EVENT SHALL ITECH SOLUTIONS BE LIABLE FOR ANY DAMAGES FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR AGGREGATE LIABILITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES, ACCESS TO THE HOSTED SERVERS OR DELIVERABLES PROVIDED BY ITECH SOLUTIONS, OR ANY MATTER WHATSOEVER, REGARDLESS OF WHETHER THE CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEEDING THE LESSER OF  THE AGGREGATE DOLLAR AMOUNT PAID BY THE CLIENT FOR THE PURCHASE OF THE PRODUCTS OR SERVICES AT ISSUE, OR  THE AMOUNT OF FEES PAID BY CLIENT UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT AND SHALL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES SPECIFIED HEREIN.
D. Essential Basis of Bargain: Client acknowledges and agrees that the fees charged by ITECH Solutions in this Agreement reflect the overall allocation of risk between the Parties, including by means of the provisions for limitation of liability and exclusive remedies described in this Agreement. Such provisions are an essential basis of the bargain between the Parties and a modification of such provisions would affect substantially the fees charged by ITECH Solutions hereunder. In consideration of such fees, Client agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk.
8. Remedies: When ITECH Solutions becomes aware of an alleged violation of this Agreement, ITECH Solutions may initiate an investigation. During the Investigation, ITECH Solutions may restrict Clients access to Hosted Servers. if applicable, in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, ITECH Solutions may, in its sole discretion, restrict, suspend, or terminate Client's Services and/or pursue other civil remedies. If such violation is a criminal offense, ITECH Solutions is hereby authorized to notify the appropriate law enforcement authorities of such violation. ITECH Solutions does not issue credits for outages incurred through Service disablement resulting from violation of this Agreement. ITECH Solutions reserves the right, in its sole discretion, to deactivate the Client's Hosted Servers, without prior notice for violation of any of ITECH Solutions policies or, after providing notice to Client, upon failure to pay lees or expiration or termination of the credit card supporting Client's account with ITECH Solutions, if applicable.
9. Counterparts; Delivery and Electronic Signatures: This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument as against any Party who has signed it, but all of which together shall constitute one and the same instrument; documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures; each such counterpart may be delivered by facsimile and/or by a digitally imaged reproduction and/or in a "portable document format" (collectively "Facsimile / PDF"), even though the Parties anticipate collecting original signatures for their respective files. Delivery of an executed counterpart of the signature page to this Agreement by Facsimile / PDF shall be deemed to be an original and shall be binding upon such signatory to the same extent as a copy hereof containing that Party's original signature. Upon request of either Party, a Party that has signed and transmitted this Agreement by Facsimile / PDF shall execute and deliver to the other Party a copy hereof containing that Party's original signature. This Agreement, any other document necessary for the consummation of the transaction contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and any applicable state law.
10. Dispute Resolution:
A. Mediation: Except as otherwise provided in this Agreement, the Parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action through any mediation provider or Service mutually agreed to by the Parties. Mediation fees, if any, shall be divided equally among the Parties involved. If, for any dispute or claim to which this paragraph applies, any Party (i) commences an arbitration or action without first attempting to resolve the matter through mediation, or (ii) before commencement of an arbitration or action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED.
B. Arbitration of Disputes: Except as otherwise provided in this Agreement, the Parties agree that any dispute or claim in law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration. The arbitrator shall be a retired judge or justice, or an attorney with at least 20 years of commercial - internet law experience, unless the Parties mutually agree to a different arbitrator. The Parties shall have the right to discovery in accordance with Code of Civil Procedure §1283.05. In all other respects, the arbitration shall be conducted in accordance with Title 9 of Part 3 of the Code of Civil Procedure. Judgment upon the award of the arbitrator(s) may be entered into any court having jurisdiction. Enforcement of this Agreement to arbitrate shall be governed by the Federal Arbitration Act.
C. "NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION."
11. Legal Expenses: In the event legal action is taken by either Party to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing Party, including reasonable attorney’s fees and court costs, shall be paid by the other Party.
12. Force Majeure: Except with regard to any obligation to pay money hereunder, neither Party hereto shall be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, telecommunications failure, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond such Party’s control. If any such contingency does occur, the time to perform an obligation under this Agreement affected thereby shall be deemed extended by the length of time such contingency continues.
13. Authority: If either Party to this Agreement is a corporation, limited liability company, trust or other legal entity, each individual executing this Agreement on behalf of said corporation, limited liability company, trust or other legal entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said corporation, limited liability company, trust or other legal entity, in accordance with the bylaws of said corporation, operating agreement of any limited liability company, trust documents or governing documents of said other legal entity, and that this Agreement is binding on said corporation, limited liability company, trust or other legal entity.
14. Independent Contractor; Use of Subcontractors: ITECH Solutions is an independent contractor and nothing in this Agreement or related to ITECH Solutions performance under any Service request shall be construed to create an employee relationship between Client and ITECH Solutions or any ITECH Solutions consultant or subcontractor. Neither ITECH Solutions, nor any of ITECH Solutions employees, shall be entitled to any benefits accorded to Client's employees, including without limitation worker's compensation, disability insurance, vacation or sick pay. ITECH Solutions may, in its discretion, utilize subcontractors to provide the Services hereunder.
15. Proprietary Rights:
A. ITECH Solutions Intellectual Property: The Parties acknowledge and agree that ITECH Solutions may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how or other intellectual property owned by ITECH Solutions or its licensors, and ITECH Solutions may also create additional intellectual property, in the performance of the Services (all of the foregoing, the “ITECH Solutions Intellectual Property”). Client agrees that any and all proprietary rights to the ITECH Solutions Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of providing the Services, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of ITECH Solutions, free from any claim or retention of rights thereto on the part of Client, and Client hereby assigns to ITECH Solutions any rights it may have in any of the foregoing.
B. Client Rights to Deliverables: ITECH Solutions hereby grants to Client a perpetual, worldwide, royalty-free, non-exclusive, non-transferable right and license to use such ITECH Solutions Intellectual Property as may be incorporated in any deliverables provided to Client, only for its own internal business purposes and to provide Services to its customers consistent with the purposes of the Services.
C. Restrictions: Client shall not copy, use, modify, or distribute any ITECH Solutions Intellectual Property except as expressly licensed in this Agreement. Client shall not cause or permit the modification, distribution, reverse engineering, decompilation, disassembly or other translation of the ITECH Solutions Intellectual Property. Client shall not alter, change, or remove from the ITECH Solutions Intellectual Property any identification, including copyright and trademark notices, and further agrees to place all such markings on any copies thereof.
A. Infringement Claims: Subject to the limitations set forth in Section “Governing Law” below, Client agrees to indemnify, defend and hold ITECH Solutions harmless against any action to the extent that such action is based upon a claim that the software or any of Client's information, infringes upon the intellectual property rights of any third party.
B. Indemnification of ITECH Solutions from Third Party Claims: Client acknowledges and agrees that by ITECH Solutions entering into and performing its obligations under this Agreement, ITECH Solutions will not assume and should not be exposed to the business and operational risks associated with Client's business, and Client therefore agrees, subject to Section “Governing Law”, and except in the case of ITECH Solutions willful misconduct or gross negligence, to indemnify, defend and hold ITECH Solutions harmless from any and all Third party Claims. actions, damages, liabilities, costs and expenses (including attorney’s fees and expenses) arising out of or related to the conduct of Client's business, including, without limitation, the use by Client of the Services.
C. Procedures: All indemnification obligations under this Section “Governing Law” shall be subject to the following requirements: (a) ITECH Solutions shall provide Client with prompt written notice of any claim; (b) ITECH Solutions shall permit Client to assume and control the defense of any action upon Client's written acknowledgment of the obligation to indemnify, defend and hold harmless (unless, in the opinion of counsel of ITECH Solutions, such assumption would result in a material conflict of interest); and (c) Client shall not enter into any settlement or compromise of any claim without ITECH Solutions prior written consent, which shall not be unreasonably withheld.
A. Scope of Obligation: In connection with the Services performed under this Agreement, the Parties may have access to the other Party's Confidential Information. “Confidential Information" means non-public Information that the disclosing Party designates in writing as being confidential. Confidential Information Includes, without limitation, information relating to the disclosing Party's software or hardware products which may Include source code, data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods, as well as, information relating to the disclosing Party's business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, Client lists and financial results. Confidential Information includes all tangible materials which contain Confidential Information whether written or printed documents, computer disks or tapes whether user or machine readable. The Parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other Party's Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer or possession of such information. Each Party agrees to maintain at least the same procedures regarding Confidential Information that it maintains with respect to its own Confidential Information, but in no event less than a reasonable standard of care. Without limiting the generality or the foregoing, neither Party shall permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by the disclosing Party and the receiving Party shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder. A Party's Confidential Information may only be used by the other Party in order to fulfill its obligations under this Agreement.
B. Exceptions: Confidential Information shall not include any information that: (a) Is already known to the receiving Party or its affiliates to be free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the receiving Party or its affiliates; (c) is received by the receiving Party from a third party without any restriction on confidentiality; (d) Is Independently developed by the receiving Party or its affiliates; (e) is disclosed to third Parties by the disclosing Party without any obligation of confidentiality; or (f) is approved for release by prior written authorization of the disclosing Party.
C. Residual Rights: Each Party acknowledges that the other may, as a result of its receipt of or exposure to the other Party's Confidential information, Increase or enhance the knowledge and experience retained in the unaided memories of its directors, employees, agents or contractors. Notwithstanding anything to the contrary in this Agreement, each Party and its directors, employees, agents or contractors may use and disclose such knowledge and experience in such Party's business, so long as such use or disclosure does not involve specific Confidential Information received from the other Party. The disclosing Party will not have rights in such knowledge and experience acquired by the recipient Party, nor rights in any business endeavors of the recipient Party which may use such knowledge and experience, nor rights to compensation related to the recipient Party's use or such knowledge and experience.
D. Irreparable Harm: Both Parties acknowledge that any use or disclosure of the other Party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate, and both Parties agree that the disclosing Party may request injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of proving actual harm or- posting bond, or in the event a bond is required, the amount shall be the lowest as allowed by law.
E. Survival of Obligation: The terms and provisions of the Confidentiality section of this Agreement shall survive any expiration or termination of this Agreement.
18. Non Solicitation of Employees: Each Party acknowledges that the other Party has a substantial investment in its employees. In consideration of this investment, both Parties agree not to solicit any employee of the other, without first receiving the other Parties’ written consent. In case of any breach of this Section, the non-breaching Party may sue the breaching Party to recover its actual damages and for injunctive relief.
19. Choice of Law; Venue: The validity and construction of this Agreement shall be governed exclusively by the laws of the State of California and the venue for any mediation, action, including arbitration, concerning this Agreement or any other cause of action shall be San Luis Obispo County, State of California. The Parties hereto acknowledge and agree that this Agreement was entered into, and is to be performed, in the above referenced County. The Parties acknowledge that this Agreement constitutes the minimum contacts necessary to establish personal jurisdiction in the State of California and agree to submit to the State of California courts exercise of personal jurisdiction.
20. Advice: Each Party hereto acknowledges and agrees that they have been advised that prior to their execution of this Agreement, that each Party should seek independent legal counsel to review this Agreement and be afforded the benefit of the advice from the same. Accordingly, each Party warrants and represents that each Party has, prior to execution of this Agreement, has either sought out the advice of independent counsel with regards to this Agreement, or that each Party has voluntarily chosen not to avail themselves of such advice, having fully read and understood the terms, conditions and legal consequences of this Agreement.
21. Time is of the Essence: Time is expressly declared to be of the essence of this Agreement.
22. Service of Notice: Service of all notices under this Agreement shall be sufficient if made by registered mail to the specific Party involved herein at its respective address noted in the preamble to this Agreement.
23. Entire Agreement and Modifications: Each Party acknowledges that it has read this Agreement and further agrees that the Agreement is the complete and exclusive statement of the Parties and supersedes and merges all prior proposals, understandings, and agreements, oral or written, between the Parties relating to the subject matter hereof, including without limitation, the terms of any Client request for proposal. No modification, amendment, supplement to or waiver of this Agreement shall be binding upon the Parties hereto unless made in writing and duly signed by both Parties.
24. No Waiver: The failure of any Party hereto to enforce at any time, or for any period of time, the provisions of this Agreement shall not be construed as a waiver of such provision or of the right of such Party thereafter to enforce each and every such provision of this Agreement.
25. Captions: The captions of the sections and paragraphs of this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Agreement, or the intent of any provision hereof.
26. Severability: In the event any one or more of the provisions of this Agreement or of any exhibit is held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired.
27. Assignment: Neither Party shall assign its rights or obligations under this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement to an entity who acquires substantially all of the stock or assets of such Party; provided that consent will be required in the event that the non-assigning Party reasonably determines that the assignee will not have sufficient capital or assets to perform its obligations hereunder. All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors and assigns.