DAG Tech Clarity SLA Terms and Conditions

Version updated 2022-05-23

This Clarity Service Level Agreement (the “Agreement”) is made by and between DAG Tech LLC (“DAG TECH”) and YOU, the CLIENT (individually, “Party”) (collectively, the “Parties”).

The Agreement will be effective on the date YOU purchase Clarity services and will automatically renew monthly, unless terminated by either Party consistent with this Agreement (the “Term”).

TERMS

1. Services and Service Levels. DAG TECH will provide Clarity Information Technology Support Services (“Services”) to YOU. Services mean those services covered in the applicable plan purchased by YOU, incorporated herein by reference. The Services are subject to this Agreement, as well as DAG TECH’s Reasonable Use Policy and data and privacy policies, as amended from time to time. Further, the Services are subject to the following service levels:

On-Site Support

On-Site Support hours provided as non-holiday, non-government closing business days 9:00am-6:00pm.

On-site response goal of 2 hours if high priority and 4 hours if regular priority.

4-hour on-site minimum.

Remote Support

24/7/365 Remote Support hours

Remote response goal of: 10 minutes to acknowledge request and 1 business hour response.

Requires tickets to be filed through DAG Tech voice, email, or web Helpdesk.

2. Taxes. Each Party is responsible for their own taxes consistent with applicable law.

3. Expenses. DAG TECH may charge YOU for travel fees and other expenses but only with YOUR prior approval.

4. Returns. CLIENT may order materials in addition to the Services. These orders are not part of the Services and incur additional charges. DAG TECH, at its sole discretion, may assess CLIENT a 15% restocking fee on any materials YOU order and which YOU return through no fault of DAG TECH or the manufacturer.

5. Client Policies and Procedures. DAG TECH will make all reasonable efforts to comply with CLIENT’s policies and procedures applicable to contractors during the Term, provided CLIENT promptly notifies DAG TECH of such policies and procedures.

6. Invoicing and Payment. Payment by CLIENT will be due in advance at the beginning of each month via credit card or ACH authorization. For example, April Services will be billed and payable on April 1. If payment is not received on the first of the month CLIENT will have a thirty (30) day grace period to render payment. If payment is not received within the 30-day grace period, then DAG TECH will stop providing the Services and immediately terminate this Agreement. Thirty (30) days after the grace period ends DAG TECH will delete all CLIENT data consistent with our data management policy. A fee equal to 1.5% of the invoiced amount will be charged for payments during the grace period or thereafter.

7. Material Breach.

a. By CLIENT. Any of the following will be a material breach by CLIENT entitling DAG TECH, at its sole discretion, to immediately terminate the Agreement without notice or opportunity to cure: (i) Failure to pay an invoice consistent with Section 6 of this Agreement; (ii) Breach of any of the representations, warranties, and covenants of this Agreement; and (iii) Breach of reasonable use.

b. By DAG TECH. Any of the following will be a material breach by DAG TECH entitling CLIENT, at its sole discretion, to immediately terminate the Agreement without notice or opportunity to cure: (i) Repeated non-performance by DAG TECH, defined as failure to meet the Service Levels described (ii) Breach of any of the representations, warranties, and covenants.

8. Assignment. Either Party may assign this Agreement to an affiliate or purchaser of some or all of the Party’s assets without the consent of the other Party.

9. Insurance. The Parties shall, at their own expense, ensure that they maintain adequate insurance in respect of their potential liability for loss or damage arising under or in connection with this Agreement.

10. Limitation of Liability. The Parties agree that they shall not be liable to the other Party, or to any third party, for any indirect, incidental, special, punitive, or consequential damages, whether arising from breach of contract, tort, equity, or other common law or statutory theory of recovery, including, but not limited to: loss of profits; revenue; data; or use of data. The CLIENT agrees that the maximum liability of DAG TECH under this Agreement shall be the total cumulative amount paid to DAG TECH over the twelve (12) month period prior to the event giving rise to any liability claim against DAG TECH. This Section shall not apply to fraud, intentional, willful, or wanton misconduct. This limitation of liability provision shall apply to this Agreement.

11. Indemnification. The Parties agree to mutually indemnify, defend, and hold harmless one another from any liabilities, losses, damages, claims, demands, or expenses, including reasonable attorney’s fees and disbursements, caused by their respective intentional or negligent actions or omissions in connection with this Agreement, including those of their officers, directors, agents, contractors, servants, or employees.

12. Non-Solicitation. For a minimum period of two (2) years from the date of termination of this Agreement, CLIENT may not solicit for hire any DAG TECH personnel, including but not limited to employees, consultants, and contractors, with whom CLIENT comes in contact as a result of this Agreement, except with the prior, written consent of DAG TECH.

13. Termination. Unless otherwise terminated or agreed by the Parties, the Agreement shall automatically renew every month. This Agreement may be terminated only in accordance with Clauses 1 and 2 of this Section.

a. Termination by CLIENT. CLIENT may terminate the Agreement due to a material breach consistent with Section 7 of this Agreement. CLIENT may also terminate this Agreement with or without cause upon written notice consistent with Clause (4) or upon an amendment or modification to which CLIENT does not agree by no longer using the Services. During the thirty (30) day period after notice of termination in accordance with this Clause, DAG TECH shall continue to provide Services to CLIENT. DAG TECH’s obligation to provide Services to CLIENT shall be deemed waived by the CLIENT if the Parties sign a written waiver.

b. Termination by DAG TECH. DAG TECH may terminate the Agreement due to a material breach consistent with Section 7 of this Agreement. DAG TECH may also terminate this Agreement without cause upon thirty (30) days written notice.

c. CLIENT data. In the event of termination, DAG Tech shall delete any CLIENT data sixty (60) days from the Termination Date unless DAG TECH terminates for convenience, in which case DAG TECH will return the CLIENT’s data if requested by the CLIENT.

d. Termination Date. Termination by CLIENT or DAG TECH will be effective on the last calendar day of the following month, unless otherwise agreed (“Termination Date”). For example, if CLIENT terminates on May 15 YOU will be invoiced on June 1 for June Services and the termination will be effective on July 1. Provided that if CLIENT terminates this Agreement upon an amendment or modification to which CLIENT does not agree by no longer using the Services, the Termination Date will be the day after CLIENT ceases using the Services and CLIENT will be invoiced pro rata for the Services.

14. Confidentiality of Information.

a. Definition. For purposes of this Agreement, “Information” shall be defined as any and all information or data stored in any manner on any media or transmitted or received orally, visually, audibly, or tactually that the Parties access, receive, possess, use, or interact with by or through conduct related to, arising from, or occurring under this Agreement. The Parties warrant that they will never inadvertently or otherwise use, disclose, provide access to, or transfer to any person or entity Information of the other Party except: (i) As reasonably necessary to provide Services under this Agreement; or (ii) With the other Party’s prior, written permission. Information shall not include information or data which: (i) Was demonstrably and lawfully known or possessed by the receiving Party prior to accessing, receiving, possessing, using, or interacting with the Information that resembles the information or data at issue; (ii) Becomes rightfully known to or possessed by the receiving Party from a third party under no obligation to the CLIENT or DAG TECH to maintain confidentiality; (iii) Is or becomes publicly available through no fault of, or failure to act by, DAG TECH or CLIENT in breach of this Agreement; (iv) Is required to be disclosed in a judicial or administrative proceeding or is otherwise required to be disclosed by applicable law; or (v) Is or has been independently developed by employees, contractors, consultants, or agents of DAG TECH or CLIENT without violating this Agreement or accessing, receiving, possessing, using, or interacting with any Information. Information shall not fall within the foregoing exceptions merely because it, or a portion thereof, is expressed in more general terms publicly or in items in CLIENT’s or DAG TECH’s possession.

b. Degree of Care. Each Party shall protect Information from the other Party with at least the same degree of care with which the Party protects their own trade secrets, employees’ personal information, or similar confidential information, but in no case with less than a reasonable degree of care.

c. Injunctive Relief. Each Party further agrees that a violation of this Section will cause the other Party irreparable harm and that this Section is enforceable through injunctive relief.

d. Compelled Disclosure. Notwithstanding anything in this Agreement to the contrary, if a Party is compelled by deposition, interrogatory, request for documents, subpoena, civil investigation demand, or similar process to disclose any Information, the Party so compelled shall: (i) Provide the other Party with prompt, written notice of such compulsion so the other Party can seek a protective order or other appropriate remedy or waive compliance with the terms of this Agreement; (ii) Exercise reasonable efforts and cooperate fully with the other Party, to the extent permitted by law, to resist or narrow the scope of such requirement and the scope of such disclosure; and (iii) If compelled to actually disclose Information, disclose only the Information the Party’s legal counsel advises must be disclosed and take reasonable steps to have the disclosed Information kept confidential.

15. Dispute Resolution. The Parties shall exercise their best efforts to settle all disputes arising under this Agreement by mutual agreement. If the dispute cannot be resolved through mutual agreement, the Parties shall refer the dispute to mediation in accordance with the American Arbitration Association (“AAA”) rules then in effect. Any controversy or claim arising out of, or relating to, this Agreement, or the breach thereof, that cannot be resolved by mutual agreement or mediation in accordance with this Section, shall be settled by arbitration in accordance with the AAA Commercial Arbitration Rules then in effect unless the Parties mutually agree otherwise in writing. The Parties shall share equally all initial costs of arbitration. The prevailing Party shall be entitled to reimbursement of attorney’s fees, costs, and expenses incurred in connection with the arbitration. Each Party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or proceeding under any theory of liability arising from, or related to, this Agreement. This Section shall not apply to injunctive relief.

16. Representations, Warranties, and Covenants. In addition to any other representations, warranties, and covenants in this Agreement, the Parties represent, warrant, and covenant to each other the following: (i) They are duly and lawfully organized as legal entities in good standing in their jurisdiction of organization; (ii) They possess the legal right and authority to enter into, execute, deliver, and perform all obligations under this Agreement; (iii) No litigation, action, arbitration, mediation, proceeding or investigation is pending or anticipated before any court, tribunal, governmental or administrative body, or other forum by, against, affecting, or involving any of their businesses or assets that materially affects this Agreement; (iv) The execution and performance of this Agreement does not constitute a breach or default of any term or provision of any contract or agreement to which they are a party; and (v) They shall comply with all applicable laws in the performance of this Agreement and in relation to the Services. Except for the express warranties in this Agreement, DAG TECH makes no representations or warranties whatsoever, express or implied, either in fact or by operation of law. DAG TECH specifically disclaims any other warranties, whether oral or written, or express or implied, including any warranty of quality, merchantability, or fitness for a particular use or purpose, for patents or the non-infringement of any intellectual property rights of third parties.

17. Governing Law and Forum. This Agreement shall be governed by, construed, and interpreted exclusively in accordance with the substantive laws of New York, without regard to any conflict of laws. Any mediation, arbitration, or judicial proceeding arising out of or related to this Agreement shall be commenced in New York County, New York.

18. Entire Agreement. This Agreement constitutes the complete, exclusive, and fully integrated understanding of the Parties with respect to subject matters contained herein and supersedes any prior written or oral agreements.

19. Amendment and Modification. DAG TECH may amend this agreement at any time by reasonable notice. Changes may include, but are not limited to: increasing or decreasing the per seat price; adding or removing components; or changing products. Using the Services after the changes become effective means CLIENT agrees to the new terms. If CLIENT does not agree to the new terms, CLIENT must stop using the Services or provide a termination notice to DAG TECH.

20. No Waiver. No failure of any Party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy under this Agreement shall constitute a waiver of such breach or any other covenant, duty, agreement, or condition unless the Parties sign a written waiver.

21. Headings. All section headings and titles are inserted herein for convenience and are without contractual significance or effect.

22. Rules of Construction. Any ambiguities in this Agreement will not be resolved against the drafting party.

23. Severability. If any provision of this Agreement is held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of other provisions.

24. Notices. All notices required by, or relating to, this Agreement shall be submitted to legal@dagtech.com.

25. Force Majeure. Neither Party shall be liable for delays in the performance of any of its obligations under this Agreement due to causes beyond its reasonable control, which include, but are not limited to: strikes; acts of nature; or acts of federal, state, or local authorities.

26. Disclaimer. Except as expressed in this Agreement, DAG TECH makes no guarantees, representations, or warranties, express or implied, with respect to the Services. DAG TECH shall provide the Services in accordance with this Agreement, but the CLIENT shall have sole responsibility for making decisions and taking action related to human resources or other matters internal to your company. DAG TECH shall not be liable for legal or regulatory compliance, information technology security or data breaches, or the outcomes of CLIENT’s decisions and actions even if in accordance with DAG TECH’s findings and recommendations.

27. Intellectual Property. All concepts, inventions, ideas, patent rights, data, trademarks, copyrights, and other intellectual property developed by DAG TECH, whether related to the Services or otherwise, shall remain the property of DAG TECH.

28. Independent Contractor. It is expressly understood that in the performance of the Services, DAG TECH shall be, and is, an independent contractor.

29. Survival of Obligations. Any obligations and duties that by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

30. Binding Effect. All terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective legal representatives, successors and permitted assigns.

31. No Third Party Beneficiaries. Nothing in this Agreement is intended to confer any rights or remedies on any persons or entities other than the Parties and their respective legal representatives, successors and permitted assigns.

32. No Partnership or Joint Venture. Nothing contained in this Agreement shall be deemed or construed by the Parties, or by a third party, as creating the relationship of: principal and agent; partnership; or joint venture between the Parties.

33. Place of performance. This Agreement assumes that DAG TECH personnel may at times work at CLIENT site. DAG TECH assumes that CLIENT will provide, at no cost to DAG TECH, all necessary office space, materials, and Internet connectivity as required for onsite support. This Agreement assumes that in the event that CLIENT-furnished items are not available, DAG TECH and CLIENT will negotiate an equitable adjustment.

34. Coupons. Issued coupons will be active for a maximum of 12 billing cycles.