Terms and Conditions
1). Definitions
2). Ownership of Property and Data
(a) Except as otherwise specified in these Terms and Conditions, Contigo Technology grants to the Client no right, title, interest, or license of any nature or kind whatsoever of any Contigo Technology company trademark, trade name, service mark, or any other intellectual or industrial property and/or proprietary rights and all such rights are expressly retained and reserved by Contigo Technology hereunder.
(b) Except as otherwise specified or granted in these Terms and Conditions, the Client grants to Contigo Technology no right, title, interest, or license in the Client’s data stored in or accessed through the Services.
3). Term
The initial service term of this Agreement shall commence on the date the contract is executed and shall continue for the first partial month of Service plus 12 months (the “Initial Term”). Upon expiration of the Initial Term, and upon each subsequent anniversary date, this Agreement shall automatically renew for a further consecutive period of twelve (12) calendar months (each a “Renewal Term”) unless Contigo Technology or Client provides the other with written notice of non-renewal at least thirty (30) calendar days prior to the expiration of the Initial Term or the expiration of then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term”.
4). Termination and Expiration
(a) Client acknowledges that the amount of the fee for the Service is based on Client’s agreement to pay the fee for the remainder of the entire Initial Term, or Renewal Term, as applicable. Monthly billing to Client is in advance of services performed. Client acknowledges that payment is due upon receipt of invoice. In the event Client terminates the Service and this Agreement in the manner permitted under these Terms and Conditions, all unpaid fees for each billing cycle consumed prior to the effective date of termination are due and payable within seven (7) calendar days following the effective date of termination of this Agreement.
(b) Either party may terminate this Agreement without further obligation if the other fails to cure a material breach of this Agreement within thirty (30) calendar days after receiving written notice of such breach. For greater certainty, (1) any failure to pay any fees or other amounts when due hereunder by Client to Contigo Technology or (2) any breach of Contigo Technology’s Code of Conduct set forth in these Terms and Conditions shall, in any case, be deemed to be a material breach by Client under this section.
(c) Upon expiration or termination of this Agreement for any reason in accordance with its terms, all licenses granted by Contigo Technology in these Terms and Conditions, and the Client’s access to the Service as defined in the SLA, shall immediately terminate.
(d) Upon expiration or any termination of this Agreement for any reason in accordance with its terms and in addition to the provisions of these Terms and Conditions, all of the Client’s payment obligations that were incurred prior to the effective date of expiration or termination shall become immediately due and payable.
(e) Notwithstanding the foregoing, in the event Client properly terminates the Service due to Contigo Technology’s’ uncured material breach, or due to a change of the Service as described in the Agreements below, Client will have no further payment obligations to Contigo Technology hereunder.
5). Termination Due to Update of Services
Contigo Technology reserves the right to make changes to Service components if such components are no longer supported by Contigo Technology. In the event that such a change adversely impacts Client’s use of the Services, and Contigo Technology cannot reasonably mitigate the impact within a further period of sixty (60) calendar days, then Client may then terminate the Services without further payment obligations to Contigo Technology hereunder.
6). Representation and Warranty
(a) Contigo Technology will make commercially reasonable efforts to provide, maintain and operate the Services to minimize downtime.
(b) Each party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement and perform the acts required of it hereunder; and (ii) when executed and delivered by such party, this Agreement will constitute a legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
(c) The Client represents and warrants that its uses of the Services defined in the SLA do not and will not violate the personal or privacy rights of any third party.
(d) Contigo Technology and its licensors provide the Service “as is”. Except as otherwise specified in this Section, to the maximum extent permitted by applicable law, Contigo Technology and its licensors expressly disclaim any and all representations, warranties and conditions, either express, implied, statutory, or otherwise with respect to the Services
provided to Client hereunder, including, but not limited to, any implied warranty or merchantability, fitness for a particular purpose, title, non-infringement, and the continuous, uninterrupted, error-free, virus-free, or secure access to or operation of the Service. Contigo Technology expressly disclaims any warranty as to the accuracy or completeness of any customer information or data accessed or used in connection with the Services.
7). Indemnification and Limitation of Liability
(a) The Client shall indemnify, hold harmless, and defend Contigo Technology and Contigo Technology shareholders, directors, officers, employees, representatives, and customers, to the fullest extent lawful, from and against any liability, loss, damage, suit, demand, claim (including any 3rd party claim), cost, judgment, award, assessment, interest, penalty, or expense (including, without limitation, reasonable attorneys’ fees), arising out of or in connection, directly or indirectly, with (i) any third party claim that the Client’s use of the Service (whether or not combined or integrated with any other products) and/or any materials provided or furnished by Client to Contigo Technology, as applicable, infringe or violate any U.S., Canadian or foreign copyright, patent, trademark, trade secrets or the personal privacy rights of any third party; (ii) any results obtained by or for the Client using the Service; or (iii) any breach of this Agreement by the Client, including breach of the Client’s representations, warranties, or covenants hereunder provided however, that Contigo Technology: (1) provides the Client with reasonable notice of any such claims; (2) provides the Client with the information and assistance necessary for such defense and settlement of the claims; and (3) does not enter into any settlement with respect to such claims (involving matters other than the payment of money) without the express consent of the Client, which consent shall not be unreasonably withheld.
(b) In the event of any third-party claim (i) that alleges that any Service, any portion of the Service, or any software, hardware or device, component or technology used by Contigo Technology to provide the Service infringes, misappropriates or violates any proprietary rights, or (ii) that otherwise seeks to limit Contigo Technology’s ability to provide the Service, Contigo Technology may, at its sole option: (1) replace the Service without additional charge, with a compatible, functionally equivalent and non-infringing product or service; (2) modify the Service to avoid the infringement and provide substantially equivalent functionality; (3) obtain a license for the Client to continue use of the Service for the remaining Term of this Agreement and pay for any additional fee required for such
license; or, (4) if none of the foregoing alternatives are, in Contigo Technology’s reasonable opinion, commercially practicable, Contigo Technology may immediately terminate this Agreement and return all Fee(s) to the Client paid by Client to Contigo Technology during the last month immediately preceding such termination.
(c) Excluding any breach by Client of any confidentiality provisions or any claim for intellectual property infringement indemnification by Contigo Technology, in no event shall either party be liable for any special, punitive, exemplary, indirect, or consequential damages arising from or relating to this Agreement and where applicable any Other Agreement (as defined below), whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even in the event that either party has been advised as to the possibility of such damages, including, but not limited to, lost profits, lost revenues, or sales, lost business opportunity, lost or corruption of data, cost of procurement of substitute services, or interruption of use or Services. Excluding any breach by Client of any confidentiality provisions or any claim for intellectual property infringement indemnification by Contigo Technology, in no event shall either parties’ respective liability under this Agreement, or where applicable any Other Agreement, exceed the fees actually paid to Contigo Technology by the Client under this Agreement
(d) Contigo Technology makes no representation or warranty that any software or content downloaded or installed on Client’s or Client’s Customers computer(s) does not contain a virus or other harmful feature. It is Client’s sole responsibility to take appropriate precautions to protect any computer or other hardware of Client or Client’s Customers from damage to its software, files or data as a result of any such virus or other harmful feature. Neither Contigo Technology or its affiliates shall have any liability whatsoever for any damage to or loss or destruction of any hardware, software, files or data resulting from any virus or other harmful feature or from any attempt to remove it.
(e) Contigo Technology shall use its best endeavors to perform the Services with reasonable skill and care. No representation or warranty is given by Contigo Technology, however, that all faults will be fixed or will be fixed within a specified period of time.
(f) Contigo Technology makes no warranty or representation that the Services will be made available to the Client uninterrupted or error free.
(g) Contigo Technology may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.
(h) The Client acknowledges and agrees that certain Services may be provided to Contigo Technology with the assistance of third party software and that accordingly Contigo Technology’s commitment to the Client in respect of these Services is subject always to the third party software’s performance of its services to Contigo Technology over which Contigo Technology has no control and which may amount to a Force Majeure Event, such as the provision of fixes and updates to software, network availability, failure or planned maintenance and that Contigo Technology’s liability in respect of any default, planned maintenance or failure of such Services shall be limited to managing resolution of the same in accordance with these Terms and Conditions as soon as is reasonably possible.
(i) Contigo Technology shall not be responsible or liable for any loss, damage, or liability resulting from any unauthorized access, use, alteration, or destruction of the Client’s data, systems, or networks by any third party, including but not limited to hackers, cybercriminals, or other malicious actors, regardless of whether such access, use, alteration, or destruction was facilitated or enabled by Contigo Technology’s negligence, breach, or failure to provide the Services in accordance with this Agreement. The Client acknowledges and agrees that it is solely responsible for implementing and maintaining adequate security measures and safeguards to protect its data, systems, and networks from any unauthorized access, use, alteration, or destruction, and that Contigo Technology does not guarantee or warrant that the Services will prevent or mitigate any such incidents.
(j) The Client further acknowledges and agrees that it is solely responsible for complying with all applicable laws, regulations, and industry standards regarding the protection, privacy, and security of its data, systems, and networks, and that Contigo Technology does not provide any legal advice or guidance on such matters. The Client shall indemnify, defend, and hold harmless Contigo Technology from and against any and all claims, damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to the Client’s failure or alleged failure to comply with any such laws, regulations, or standards.
8). Confidential Information
(a) During the Term of this Agreement and for three (3) years thereafter, each party (the “Receiving Party”): (i) shall treat as strictly confidential all Confidential Information disclosed by the other party (the “Disclosing Party”); (ii) shall not disclose, disseminate, distribute, or transfer such Confidential Information to any third party without the express
written consent of Disclosing Party; (iii) shall not use such Confidential Information except solely for the purpose of its performance under this Agreement; and (iv) shall protect the Confidential Information by using at least the same degree of care as the Receiving Party uses to protect its own confidential information of like nature to prevent any unauthorized access, use, dissemination, or publication of such Confidential Information, but in no event less than reasonable care. The Receiving Party further agrees to disclose Disclosing Party’s Confidential Information only to its employees and consultants with a need to know such Confidential Information to perform their work responsibilities and agrees to require such employees and consultants to execute nondisclosure agreements containing protections substantially similar to the restrictions herein. The Receiving Party shall promptly notify the Disclosing Party in writing of any unauthorized access, use, dissemination, or publication of such Confidential Information.
(b) Upon prior written notice to the Disclosing Party, the Receiving Party may disclose Disclosing Party’s Confidential Information as: (i) is required by law or regulation to be disclosed, but only to the extent and solely for the purpose of such required disclosure; or (ii) is required by order of a court or other governmental body, but only to the extent and solely for the purpose of such required disclosure. The Receiving Party agrees to assist the Disclosing Party (at the Disclosing Party’s expense) in all proper ways to limit or prevent the disclosure of such Confidential Information.
(c) The Receiving Party will return or destroy (at the Disclosing Party’s election) all Confidential Information (including all copies) received from the Disclosing Party within its possession, custody, or control promptly upon termination or expiration of this Agreement or upon the earlier written request of the Disclosing Party. At the request of the Disclosing Party, after such return or destruction, the Receiving Party shall certify in writing that such return or destruction has been accomplished.
(d) Confidential Information does not include information which as evidenced in writing by the Receiving Party: (i) is known to the Receiving Party, without any confidentiality restriction, at the time of disclosure by the Disclosing Party; (ii) is publicly known or becomes publicly known and made generally available through no wrongful act of the Receiving Party or any third party; (iii) has been rightfully received by the Receiving Party, without any confidentiality restriction, from a third party who is authorized to make such disclosure and not otherwise in violation of this Agreement; (iv) is disclosed generally to third parties by the Disclosing Party without any confidentiality restriction; or (v) was independently developed by the Receiving Party without any use of the Confidential Information.
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(e) Each party has the right to disclose the existence of this Agreement but agrees that the material terms and conditions of this Agreement (including, without limitation, the pricing of the Services) shall be deemed Contigo Technology’s Confidential Information.
9). Code of Conduct
Each party agrees not to: (a) upload, transmit, post, email or otherwise make available to the other party’s information systems or web sites any content or other material in any format that: (i) is false, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, libelous and/or otherwise objectionable; (ii) infringes any third party’s intellectual property; or (iii) contains viruses, worms, Trojan horses, corrupted files, or any other similar software or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (b) alter, remove, or falsify any attributions or other proprietary designations of origin or source of any content used in association with the Services; (c) impersonate any person or entity, including, but not limited to, any Contigo Technology official, or falsely state or otherwise misrepresent an affiliation with a person or entity; or (d) attempt, through any means, to gain unauthorized access to the Services. The use of any device, software or routine that interferes or attempts to interfere with the proper working of Services is expressly prohibited.
In accordance with federal, state/provincial and local laws, harassment based on race, color, religion, gender, marital status, sexual orientation, national origin, citizenship, age, physical and mental disability or any other characteristic protected by law, will not be sanctioned or tolerated.
Harassing conduct includes, but is not limited to name calling, slurs, or negative stereotyping; threatening, intimidating or hostile acts; statements and attempts at what the speaker believes is humor which is racial or sexual in nature, which comments upon one’s race, color, religion, gender, sexual orientation, national origin, age, disability, marital status, citizenship or any other characteristic protected by law; and written or graphic material that belittles or shows hostility or aversion toward an individual or group and that is written or spoken or typed and circulated in the work place.
Contigo Technology will not condone any acts or threats of violence against our employees nor our customers. It is the commitment of Contigo Technology:
10). Governing Law
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States, without regard to its choice of law rules. The parties expressly agree and consent to the exclusive and sole jurisdiction and venue of the courts of competent jurisdiction located in the State of Texas, United States of America as the forum for any dispute or controversy regarding this Agreement or its execution, delivery, interpretation, performance or enforcement.
11). Entire Agreement
(a) This Agreement represents the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior understandings or representations, whether written or oral, between the parties with respect to such subject matter. Only a writing executed by both parties may amend this Agreement. A term or provision of this Agreement may be waived only with the written consent of the parties, and the waiver of any particular breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. To the extent of any conflicts, inconsistencies or ambiguities between these Terms and Conditions, on the one hand, and the terms of any other agreement, statement of work, work orders or other document between the parties hereto, on the other hand (collectively, “Other Agreements”), the terms of the Managed Services Provider Services Agreement shall prevail, govern and rank paramount over the terms of the Other Agreements solely to the extent of such conflicts, inconsistencies or ambiguities unless specifically otherwise provided in any of such Other Agreements.
(b) Subject to these Terms and Conditions, this Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. For purposes hereof, a facsimile or electronic/PDF copy of the Agreement shall be deemed to be an original. Upon written request, the parties shall deliver original execution copies of the Agreement to each other as soon as practicable following execution thereof.
(c) The headings of the sections of this Agreement are intended for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
12). Severability of Terms
If one (1) or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then: (i) such provision shall be excluded from this Agreement; (ii) the remainder of the Agreement shall be interpreted as if such provision were so excluded; and (iii) the remainder of the Agreement shall be enforceable in accordance with its terms.
13). Assignment of Rights and Obligations
(a) Neither the Client nor Contigo Technology may assign any of its rights or obligations under this Agreement, except with the prior written consent of the other party, which consent shall not unreasonably be withheld or delayed. Any assignment in breach of this paragraph shall be null and void. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective permitted successors and assigns.
(b) Notwithstanding the above but subject to the provisions of this paragraph, each party hereto may assign its rights and obligations under this Agreement to a successor in interest in the event of a merger, share sale, acquisition or a sale of substantially all of its assets to a third party entity without the prior written consent of the non-assigning party provided that the assigning party delivers notification within ten (10) calendar days to the non-assigning party prior to the completion of such merger, share sale, acquisition or asset sale. Contigo Technology shall reserve the right to terminate this Agreement within a reasonable period after receipt of such notice of assignment if Client’s proposed assignee is, in the sole opinion of Lasso Systems, unacceptable.
(c) Any notice required or permitted by this Entire Agreement shall be: (i) in writing; (ii) delivered by messenger, courier service, nationally or internationally recognized overnight delivery service, U.S. certified or registered mail, or confirmed facsimile; and (iii) effective upon receipt. Oral, electronic mail or voice-mail notice shall not be effective notice. Notice shall be addressed to the party to be notified at such party’s address or facsimile number as set forth in this Entire Agreement, or as subsequently modified by written notice pursuant to this subsection.
15). Miscellaneous
(a) Contigo Technology products and services, their design, content and source code are owned and are the exclusive property of Contigo Technology. Contigo Technology products and services contain copyrighted material, trademarks, and other proprietary intellectual property. Contigo Technology products and services are protected by U.S. and copyright laws and other intellectual property laws, as well as international copyright treaties and multilateral and bilateral agreements. Unauthorized reproduction of it, or any portion of it, may result in severe civil and criminal law penalties. Contigo Technology shall enforce its intellectual property rights to the fullest extent of the law.
(b) Contigo Technology has limited proprietary information from vendors, manufacturers, and developers, and may not have the ability to obtain any proprietary information necessary to answer a user’s question. Client acknowledges that Contigo Technology may not be able to solve a particular problem.
(c) Remediation of any software issues will be limited to solutions endorsed and made publicly available by the original software manufacturer. Contigo Technology will not be responsible for debugging and/or correcting defects in any manufacturers’ supplied software programs. Contigo Technology’s responsibilities will not replace or supersede any original software license agreements, responsibilities and commitments entered into between the Client and the original software manufacturer for usage, operation, and support of any software.
16). Force Majeure
Notwithstanding anything to the contrary, in no event shall either party be liable to the other for any delay or failure to perform hereunder, which delay or failure to perform is due to causes beyond the control of the non-performing party including, but not limited to, government restrictions, exchange or market rulings, labor strike, war, act of civil or military authority, sabotage, epidemic, flood, earthquake, fire, other natural disaster, or any other event, condition or occurrence beyond the reasonable control of such non-performing
party (each, a “Force Majeure”). The non-performing party shall promptly notify the other party of the nature and anticipated length of the continuance of the Force Majeure, and if such condition persists for a period greater than thirty (30) calendar days, the other party may, at its option, terminate this Agreement without further payment obligations.
17). Functional Equivalency
The parties agrees that electronic pages accessed by it on or through Contigo Technology’s website are written documents and that by electronically acknowledging by “clicking” any “buttons” stating “OK” or “I Accept”, “proceed”, “continue”, “approve” or “buttons” with similar intent shall have the same legal effect as the parties (or their respective officers, employees or legal representatives) having placed its or his signature by hand and provided hardcopy versions of such pages with intent to be legally bound with each other for their content. The parties accept any records or documents stored or produced by the others through electronic means or device as sufficient evidence for all purposes to establish such documents and the contents as correct, authentic and binding on each of the parties hereto. Each of the parties has the right to print out a hardcopy of these Terms and Conditions for its own records.