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DAG Tech Diamond365 IT Support ESLA Terms and Conditions

Reasonable Use Policy

DAG TECH prepared this Reasonable Use Policy (“RUP”) to ensure its clients are fully informed of the intended and permissible uses of its Diamond 365 IT Support Plans and services. This RUP is designed to prevent abuse of DAG TECH’s Diamond 365 IT Support Plans and services. This RUP applies to all DAG TECH Diamond 365 IT Support Plans and services and is incorporated by reference into all of DAG TECH’s Diamond 365 IT Service Level Agreements and Terms of Service.

DAG TECH’s Diamond 365 IT Support Plans and services are limited to normal, reasonable use consistent with types and levels of usage by a typical subscriber. DAG TECH reserves the right to prevent or stop any use of our Diamond 365 IT Support Plans or services that appears to DAG TECH, at its sole discretion, to be abusive (“Unreasonable Use”). The following is a non-exhaustive list of practices that may constitute Unreasonable Use:

  • Use of DAG TECH Diamond 365 IT Support Plans and services for any unlawful purpose, including, but not limited to: any usage that encourages conduct that would constitute a criminal offense, give rise to civil liability, or violate any applicable law;
  • Usage that is unduly burdensome;
  • Usage in excess of usage metrics;
  • Usage that circumvents restrictions imposed by DAG TECH’s Diamond 365 IT Support Plans;
  • Usage that violates reasonable use limits for specific Diamond 365 IT services in accordance with the below Reasonable Use Table or as otherwise determined by DAG TECH at its sole discretion; and
  • Any other usage that DAG TECH determines to be unreasonable.

Other usage may be relevant in determining Unreasonable Use and DAG TECH reserves the right to consider any unlawful, prohibited, abnormal, unusual, or excessive activity when it determines Unreasonable Use.

DAG TECH may, at its sole discretion, terminate or suspend its relationship with a client, and the client’s use of any DAG TECH Diamond 365 IT Support Plan or services, if it determines the client is engaged in Unreasonable Use.

Reasonable Use Table

CATEGORY

REASONABLE USE LIMIT

EXAMPLES OF UNREASONABLE USE AND THEREFORE NOT COVERED BY THE DIAMOND 365 IT SERVICE LEVEL AGREEMENT*

 

 

*The below list is not exhaustive. DAG Tech may determine, at its sole discretion, that other services, not expressly listed, exceed reasonable use and thus are not covered by the Diamond 365 IT Service Level Agreement.

1.* Core Support

Hardware and software inventory must be available through TSS or third-party tools.

Manually inventorying fleet of hardware or software assets

1.* Core Support

Operating System updates are limited to security and feature patches only.

Operating System version upgrades

1.* Core Support

Software patching must be performed via Windows Update or third-party management tool except during initial system setups.

Manually patching software across fleet

1.* Core Support

Manual installation, uninstallation, version upgrades, or configuration for hardware or applications may not exceed 5% of fleet within one month period.

Manually installing software on fleet; Manually re-configuring application on fleet

1.* Core Support

User training for software, systems, or services is limited to vendor training materials.

End-user training sessions

1.* Core Support

Maximum 5% of fleet may be replaced, upgraded, refreshed, or decommissioned within a one month period.

Fleet upgrades/refreshes for more than 5% of systems in a single month. DAG Tech may, at its sole discretion, determine that reasonable use limits permit service coverage exceeding 5% of systems.

1.* Core Support

Hardware repairs must be performed by manufacturer or an authorized third-party.

Hard drive replacement on user's workstation; Screen replacement on smartphone

1.* Core Support

Software bugs or defects will be the sole responsibility of the software vendor.

Request to fix an application that is crashing due to software defect

1.* Core Support

Maximum three (3) endpoints per supported user
(e.g. two computers, one smartphone).

End-user has more than three devices

1.* Core Support

Malware infections will be covered only if a single machine is verified to be infected.

Malware outbreak affecting several systems.

1.* Core Support

Data recovery will be limited to scenarios involving accidental deletion of individual files up to 20% of total data set, or physical single disk failure, and is limited to restoring files or images from live backup.

Performing data recovery on failed disk; Rebuilding failed disk array; Recovering files from crypto-malware infection; Restoring files from cold storage archive

1.* Core Support

Recovery of system images is limited to two systems (i.e. workstations or servers) per month.

Disaster recovery scenarios

1.2 Core Support/On-Site Locations

On-site engineer visits are limited to two (2) per month for sites with fewer than fifty (50) users except for emergency events, or at DAG Tech's sole discretion. DAG Tech shall, at its sole discretion, determine what constitutes emergency events.

On-site visits for low-severity issues. DAG Tech shall determine, at its sole discretion, what constitutes low-severity issues.

1.2 Core Support/On-Site Locations

On-site engineer visits are limited to four (4) per month for sites with more than fifty (50) users except for emergency events, or at DAG Tech's sole discretion. DAG Tech shall, at its sole discretion, determine what constitutes emergency events.

On-site visits for low-severity issues. DAG Tech shall determine, at its sole discretion, what constitutes low-severity issues.

1.2 Core Support/On-Site Locations

On-site visits may not exceed four (4) hours per day for sites with fewer than fifty (50) users except at DAG Tech's sole discretion.

 

1.2 Core Support/On-Site Locations

On-site visits may not exceed more than eight (8) hours per day for sites with more than fifty (50) users except at DAG Tech's sole discretion.

 

2.* Cloud Core Services Support

Cloud service inventory must be available through automated inventory management systems.

Manually inventorying of cloud services or systems

2.* Cloud Core Services Support

Cloud system architecture or will not be covered.

Designing a cloud migration strategy; Auditing cloud system budget or best practices

2.* Cloud Core Services Support

Cloud system engineering beyond that required to troubleshoot and resolve day-to-day issues will not be covered.

Voluntary re-engineering of file sharing service.

2.* Cloud Core Services Support

User training for software, systems, or services is limited to vendor training materials.

End-user training sessions

2.* Cloud Core Services Support

Resolution of issues stemming from software bugs or defects will be limited to workarounds only. The resolution of software bugs or defects will be the sole responsibility of the service provider.

Create a fix for software that is crashing due to a software bug.

2.* Cloud Core Services Support

Migrations, integrations, or bulk data moves will not be covered.

Migrate from Exchange to Office365; Extend on-premise ActiveDirectory to hybrid cloud

2.* Cloud Core Services Support

Resolution of issues caused by system outages will be limited to workarounds only. System outages will be the sole responsibility of the service provider.

 

2.* Cloud Core Services Support

Operations involving the import or export of bulk data (including but not limited to user accounts, mailboxes) must be done through bulk import/export utilities.

Manually populating user accounts for an entire organization on Office365.

2.* Cloud Core Services Support

Data recovery will be limited to scenarios involving accidental deletion of individual files up to 20% of total data set and is limited to restoring files or images from live backup.

Recovering files from crypto-malware infection; Disaster Recovery scenarios

2.* Cloud Core Services Support

Development, or audit, of policies - compliance or otherwise - will not be covered.

Audit HIPAA compliance on cloud services

3.* Premise Core Services Support

Hardware and software inventory must be available through TSS or third-party tools.

Manually inventorying fleet of hardware or software assets

3.* Premise Core Services Support

Operating System updates are limited to security and feature patches only.

Operating System version upgrades

3.* Premise Core Services Support

Manual installation, uninstallation, version upgrades, or configuration for hardware or applications may not exceed 5% of fleet within one month period.

Manually installing software on fleet; Manually re-configuring application on fleet

3.* Premise Core Services Support

User training for software, systems, or services is limited to vendor training materials.

End-user training sessions

3.* Premise Core Services Support

Hardware repairs other than single hard drive replacement must be performed by manufacturer or an authorized third-party.

Motherboard replacement on server; Rebuilding server RAID array

3.* Premise Core Services Support

Resolution of issues stemming from software bugs or defects will be limited to workarounds only. The resolution of software bugs or defects will be the sole responsibility of the service provider.

Create a fix for software that is crashing due to a software bug.

3.* Premise Core Services Support

Migrations, integrations, or bulk data moves will not be covered.

Migrate from Exchange to Office365; Extend on-premise ActiveDirectory to hybrid cloud

3.* Premise Core Services Support

Legacy systems or systems that are out of official support from the vendor (end-of-life) will not be covered.

Support servers running Windows Server 2003, which ended extended support from Microsoft in July 2015

3.* Premise Core Services Support

Malware infections will be covered only if a single machine is verified to be infected.

Malware outbreak affecting several systems.

3.* Premise Core Services Support

Data recovery will be limited to scenarios involving accidental deletion of individual files up to 20% of total data set, or physical single disk failure, and is limited to restoring files or images from live backup.

Performing data recovery on failed disk; Rebuilding failed disk array; Recovering files from crypto-malware infection; Restoring files from cold storage archive

3.* Premise Core Services Support

Recovery of system images is limited to two systems (i.e. workstations or servers) per month.

Disaster recovery scenarios

3.* Premise Core Services Support

System architecture or auditing will not be covered.

Designing a cloud migration strategy; Audit server best practices

3.* Premise Core Services Support

Cloud system engineering beyond that required to troubleshoot and resolve day-to-day issues will not be covered.

Voluntary re-engineering of Email server.

3.* Premise Core Services Support

Development, or audit, of policies - compliance or otherwise - will not be covered.

Audit HIPAA compliance on fleet of servers

4.* Network Support

Hardware and software inventory must be available through TSS or third-party tools.

Manually inventorying fleet of hardware or software assets

4.* Network Support

Operating System updates are limited to security and feature patches only.

Operating System version upgrades

4.* Network Support

Hardware replacements/refreshes/

upgrades are to be performed in emergency scenarios only. DAG Tech shall, at its sole discretion, determine what constitutes emergency scenarios.

 

4.* Network Support

Hardware repairs must be performed by manufacturer or an authorized third-party.

 

4.* Network Support

Resolution of issues stemming from software bugs or defects will be limited to workarounds only. The resolution of software bugs or defects will be the sole responsibility of the service provider.

Create a fix for software that is crashing due to a software bug.

4.* Network Support

Repair to structured cabling beyond basic re-termination must be performed by a third-party specialist.

Re-terminating multiple keystone wall jacks; Re-terminating multiple patch panel ports; Re-running structured cabling

4.* Network Support

Troubleshooting, toning, tagging of structured cabling must be performed by a third-party specialist.

Toning faulty cabling; tracing structured cabling

4.* Network Support

Network topology changes may only be made due to and in the course of troubleshooting or issue resolution, at DAG Tech's sole discretion.

Re-addressing IP network; Re-engineering VLANs

4.* Network Support

Minor security policy (including ACLs) changes will be made only in the course of troubleshooting or issue resolution.

ACL and/or policy audit and re-engineering

4.* Network Support

Voluntary changes that impact how users connect to or access networks will not be covered.

Implementing 802.1X; Changing WLAN SSID

4.* Network Support

Development, or audit, of policies - compliance or otherwise - will not be covered.

Audit HIPAA compliance on network switches or routers

4.1 Network Support/Internet Connectivity

Changes to Internet connectivity (such as ISP or IP address changes) will be covered only if there is no widespread impact to the network.

Voluntary switching ISP at headquarters or any other office

4.2 Network Support/Ethernet Connectivity

4.3 Network Support/Wireless Connectivity

System architecture or auditing will not be covered.

Performing radio spectrum analysis

4.4 Network Support/VPN Connectivity

Resolution of issues stemming from users' local networks will not be covered.

Fixing users’ home or hotel internet connections

5.* Security Support

Hardware and software inventory must be available through TSS or third-party tools.

Manually inventorying fleet of hardware or software assets

5.* Security Support

Operating System updates are limited to security and feature patches only

Operating System version upgrades

5.* Security Support

Hardware replacements/refreshes/

upgrades are to be performed in emergency scenarios only. DAG Tech shall, at its sole discretion, determine what constitutes emergency scenarios.

 

5.* Security Support

Hardware repairs must be performed by manufacturer or an authorized third-party.

 

5.* Security Support

Resolution of issues stemming from software bugs or defects will be limited to workarounds only. The resolution of software bugs or defects will be the sole responsibility of the service provider.

Create a fix for software that is crashing due to a software bug.

5.* Security Support

Voluntary changes that impact user access to networks, applications, or services will not be covered.

Implementing 802.1X; Implementing Single Sign On (SSO) or Multi-Factor Authentication (MFA)

5.* Security Support

Development, or audit, of policies, compliance, or otherwise will not be covered.

Audit HIPAA compliance on firewalls or security appliances

5.1 Security Support/Anti-Virus

Malware infections will be covered only if a single machine is verified to be infected.

Malware outbreak across several systems.

5.2 Security Support/Firewall

Minor security policy (including ACLs) changes will be made only in the form of troubleshooting or issue resolution.

ACL and/or policy audit and re-engineering

5.2 Security Support/Firewall

Network topology changes may only be made due to, and in the course of, troubleshooting or issue resolution, at engineer's discretion.

Re-addressing IP network; Re-engineering VLANs


Terms of Service

THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU, THE CLIENT, AND DAG TECH, AND GOVERN YOUR USE OF AND ACCESS TO THE DIAMOND 365 IT Support Plan.

By accepting these Terms YOU agree to be bound by these Terms. If YOU enter into these Terms on behalf of a company, organization, or another legal entity (an “Entity”), YOU agree to these Terms for that Entity and represent to DAG TECH that YOU have the authority to bind such Entity. In such a case, the terms “CLIENT,” “YOU,” “YOUR,” or related capitalized words herein, shall refer to such Entity. If YOU do not have such authority, or if YOU do not agree with these Terms, YOU must not accept these Terms and may not use the Service, as defined below.

  • DEFINITIONS
  • When used in these Terms, the following words shall have the meaning provided below.

    CLIENT, YOU, YOUR: means the Party who purchased the Services from DAG TECH and consented to these Terms.

    DAG TECH: means DAG TECH, LLC, a Maryland limited liability company.

    Information: means any and all information or data stored in any manner on any media, or transmitted or received orally, visually, audibly, or tactually that YOU and DAG TECH access, receive, possess, use, or interact with by or through conduct related to, arising from, or occurring under these Terms. Information does not include information or data which:

    • 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;
    • Becomes rightfully known to, or possessed by, the receiving Party from a third party under no obligation to YOU or DAG TECH to maintain confidentiality;
    • Is or becomes publicly available through no fault of, or failure to act by, DAG TECH or YOU in breach of these Terms;
    • Is required to be disclosed in a judicial or administrative proceeding or is otherwise required to be disclosed by applicable law; and
    • Is or has been independently developed by employees, contractors, consultants, or agents of DAG TECH or YOU without violating these Terms or accessing, receiving, possessing, using, or interacting with any Information.

    Information does not fall within the above 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.

    Party: means either DAG TECH or YOU, the CLIENT. The plural, Parties, means both DAG TECH and YOU, the CLIENT.

    Service: means the Diamond 365 IT Support Plan and services that YOU, as the CLIENT, purchased through the DAG TECH E-Store, including all reasonable use limits in accordance with these Terms and DAG TECH’s Reasonable Use Policy.

    Subscription Term: means one (1) year from the date YOU sign up for the Service or until terminated by either YOU or DAG TECH in accordance with these Terms.

    Terms: means these Terms of Service.

    Unreasonable Use: means as defined in Clause 2.8 of these Terms and DAG TECH’s Reasonable Use Policy.

  • SERVICES
      1. Definition. DAG TECH shall provide Services to CLIENT, as defined above, and based on the Diamond 365 IT Support Plan and services that YOU, as the CLIENT, selected through the DAG TECH E-Store, including all reasonable use limits in accordance with Clause 2.8 of these Terms and DAG TECH’s Reasonable Use Policy.
      2. Place of Performance. To the extent necessary to perform DAG TECH’s obligations under these Terms, CLIENT shall provide DAG TECH, at no cost to DAG TECH, all office space, materials, and internet connectivity necessary to perform the Services. If CLIENT cannot provide the access and materials required under this Clause, DAG TECH and CLIENT shall make all reasonable efforts to negotiate a modification to these Terms. In the event DAG TECH and CLIENT cannot agree on such modification or cannot reach agreement on the access and materials provided by CLIENT under this Clause, either CLIENT or DAG TECH may terminate these Terms, at their sole discretion, upon thirty (30) days’ written notice to the other Party.
      3. Taxes. CLIENT shall pay all taxes (including, without limitation, all local, state, and federal sales, use, rental, and license taxes) that may now or hereafter be imposed on DAG TECH or CLIENT that relate to the Services and related materials and expenses but excluding all taxes on, or measured by, the income or wealth of DAG TECH.
      4. Expenses. DAG TECH may charge CLIENT for travel fees and other expenses with the prior approval of CLIENT.
      5. Returns. DAG TECH may, at its sole discretion, assess CLIENT a fifteen percent (15%) restocking fee on any returned materials.
      6. CLIENT Policies and Procedures. DAG TECH shall make all reasonable efforts to comply with CLIENT’s policies and procedures applicable to contractors during the Subscription Term, provided CLIENT promptly notifies DAG TECH of such policies and procedures. Such policies and procedures may include, but are not limited to:
  • Handling of sensitive and proprietary information;
  • Nondisclosure and non-use of confidential information; and
  • Policies governing responsibilities, security, ethics and conduct on CLIENT’s premises or while otherwise providing Services to CLIENT.
      1. Billing and Payments. YOU shall be billed for the Services on a monthly basis using the billing information provided to DAG TECH at the time YOU purchased the Services through DAG TECH’s E-store. If a credit card transaction is declined, DAG TECH may, at its sole discretion, terminate these Terms unless valid credit card information is provided to DAG TECH within thirty (30) days of YOU receiving notice from DAG TECH of the declined credit card transaction.
      2. Reasonable Use. These Terms and the Services shall be limited to reasonable use, as determined at DAG TECH’s sole discretion. DAG TECH reserves the right to prevent or stop any use by CLIENT that appears to DAG TECH, at its sole discretion, to constitute Unreasonable Use. The following is a non-exhaustive list of practices that may constitute Unreasonable Use:
  • Use of DAG TECH Diamond 365 IT Support Plans or services for any unlawful purpose, including, but not limited to: any usage that encourages conduct that would constitute a criminal offense, give rise to civil liability, or violate any applicable law;
  • Usage that is unduly burdensome;
  • Usage in excess of usage metrics;
  • Usage that circumvents restrictions imposed by DAG TECH’s Diamond 365 IT Support Plans;
  • Usage that violates reasonable use limits for specific Diamond 365 IT services as set forth in the Reasonable Use Table of the Reasonable Use Policy or as otherwise determined by DAG TECH at its sole discretion; and
  • Any other usage that DAG TECH determines, at its sole discretion, to be unreasonable or in violation of DAG TECH’s Reasonable Use Policy.
  • CLIENT shall not directly or indirectly engage in actions that are determined by DAG TECH, at its sole discretion, to constitute Unreasonable Use, as defined in these Terms. Usage by CLIENT in violation of this Clause shall constitute a material breach of these Terms, entitling DAG TECH to immediately terminate these Terms and Services without notice or opportunity to cure.

  • MATERIAL BREACH
      1. Any of the following shall constitute a material breach by CLIENT entitling DAG TECH to immediately terminate these Terms and Services without notice or opportunity to cure:
    • Violation of reasonable use conditions in Clause 2.8 of these Terms;
    • Breach of any of the representations, warranties, and covenants in Section 12 of these Terms;
    • Failure to provide valid credit card information to DAG TECH within thirty (30) days of YOU receiving notice from DAG TECH of a declined credit card transaction; and
    • Failure to maintain insurance in accordance with Section 5 of these Terms.
  • ASSIGNMENT
        1. DAG TECH Assignment. DAG TECH may assign these Terms to an affiliate or purchaser of some or all of DAG TECH’s assets without the consent of CLIENT.
        2. CLIENT Assignment. CLIENT may assign these Terms to an affiliate or purchaser of some or all of CLIENT’s assets with prior, written consent from DAG TECH.
        3. Assignment Ineffective. Any assignment by CLIENT without DAG TECH’s prior, written consent shall be ineffective.
  • INSURANCE
        1. CLIENT Obligations. CLIENT shall maintain insurance equal to one hundred percent (100%) of the full replacement value, without regard to devaluation for technology advances, of all computer hardware, software, systems, and data of the CLIENT. CLIENT’s insurance shall include liability coverage that fully insures DAG TECH employees, contractors, and consultants for Services under these Terms.
        2. DAG TECH Obligations. DAG TECH shall take all reasonable measures to avoid activity that may jeopardize or conflict with CLIENT’s insurance or cause the CLIENT’s insurance costs to increase. DAG TECH shall not be responsible for damage to any of CLIENT’s computer equipment or data.
  • LIMITATION OF LIABILITY
        1. General Scope. The Parties agree that, to the fullest extent permitted by applicable law, they shall not be liable to the other Party, or to any third party, for any indirect, incidental, special, punitive, or consequential damages, including, but not limited to, loss of profits, revenue, data or use, whether arising from breach of contract, tort, equity, or other common law or statutory theory of recovery.
        2. Maximum Liability. The CLIENT agrees that the maximum liability of DAG TECH under these Terms 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.
        3. Exceptions. This Section shall not apply to fraud, intentional, willful, or wanton misconduct.
  • INDEMNIFICATION
        1. General Scope. 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 these Terms, including those of their officers, directors, agents, contractors, servants, or employees.
        2. Harm. This Section applies to all actions or omissions in connection with these Terms regardless of the kind of harm incurred or when such harm was incurred.
        3. No Limitation. Notwithstanding any other provision of these Terms, this obligation of indemnity shall not be limited.
  • NON-SOLICITATION
        1. For a minimum period of two (2) years from the date of termination of these Terms, CLIENT may not solicit for hire any DAG TECH personnel with whom CLIENT comes in contact as a result of these Terms or the Services, except with the prior, written consent of DAG TECH.
  • TERMINATION
      1. These Terms may be terminated in accordance with this Section.
      2. Automatically. The Terms shall terminate automatically one (1) year from the date CLIENT signs up for the Service unless otherwise terminated by CLIENT or DAG TECH in accordance with these Terms, or CLIENT and DAG TECH otherwise agree.
      3. Termination by CLIENT. CLIENT may terminate these Terms for the following reasons:
    • At any time and for any reason, or no reason at all, upon thirty (30) days’ written notice to DAG TECH; and
    • Upon thirty (30) days’ written notice to DAG TECH, in the event the Parties cannot reach agreement on the access and materials provided by CLIENT under Clause 2.2 of these Terms.
      1. Termination by DAG TECH. DAG TECH may terminate these Terms for the following reasons:
    • In the event of a material breach under Section 3 of these Terms without notice or opportunity to cure and at the sole discretion of DAG TECH; and
    • Upon thirty (30) days’ written notice to CLIENT, in the event the Parties cannot reach agreement on the access and materials provided by CLIENT under Clause 2.2 of these Terms.  
  • CONFIDENTIALITY OF INFORMATION
      1. Warranty. 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:
    • As reasonably necessary to provide Services under these Terms; or
    • With the other Party’s prior, written permission.
      1. Degree of Care. The Parties shall protect any Information with at least the same degree of care with which it protects its own trade secrets, employees’ personal information, or similar confidential information, but in no case with less than a reasonable degree of care.
      2. Injunctive Relief. Each Party further agrees that a violation of this Section will cause the other Party irreparable harm and that it is enforceable through injunctive relief. The right to secure an injunction or temporary restraining order is not exclusive, and each Party may pursue any other remedies against the other Party for a breach or threatened breach of this Section, including the recovery of damages.
      3. Compelled Disclosure. Notwithstanding anything in these Terms 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:
    • 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 these Terms;
    • 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
    • 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.
  • DISPUTE RESOLUTION AND GOVERNING LAW
        1. Mutual Agreement. The Parties shall exercise their best efforts to settle all disputes arising under these Terms by mutual agreement. If the dispute cannot be resolved through mutual agreement, the Parties shall refer the dispute to mediation or arbitration in accordance with this Section.
        2. Mediation. Before resolution by binding arbitration under this Section, all claims, disputes, or other matters in question arising from, or related to, these Terms shall be submitted to mediation pursuant to the American Arbitration Association’s (“AAA”) rules then in effect, unless the Parties mutually agree otherwise in writing. The Parties shall make a good faith effort to resolve all claims, disputes, or other matters in question. Any demand for mediation shall be made pursuant to AAA rules and within a reasonable time after the claim, dispute, or other matter has arisen. In no event shall the demand for mediation be made after the date when the commencement of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statute of limitations.
        3. Arbitration. Any controversy or claim arising out of, or relating to, these Terms, 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. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All decisions of the arbitrator(s) shall be final, binding, and conclusive on all parties. 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.
        4. Waiver of Jury Trial. 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, these Terms.
        5. Governing Law. These Terms shall be governed by, construed, and interpreted exclusively in accordance with the substantive laws of New York, without regard to any conflict of laws.
        6. Exception. This Section shall not apply to injunctive relief sought under Clause 10.3 of these Terms.
  • REPRESENTATIONS, WARRANTIES, AND COVENANTS
      1. In addition to any other representations, warranties, and covenants in these Terms, the Parties represent, warrant, and covenant to each other the following:
    • They are duly and lawfully organized as legal entities in good standing in their jurisdiction of organization;
    • They possess the legal right and authority to enter into, execute, deliver, and perform all obligations under these Terms;
    • 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 these Terms;
    • The execution and performance of these Terms does not constitute a breach or default of any term or provision of any contract or agreement to which they are a party; and
    • They shall comply with all applicable laws in the performance of these Terms and in relation to the Services.
  • MISCELLANEOUS
      1. Entire Agreement. These Terms 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. The Terms are the sole repository of the Parties’ understanding with respect to the subject matters contained herein. The Parties are not bound by any other agreements, promises, representations, or writings of any kind or nature with respect to the subject matters contained herein. These Terms may not be supplemented, explained, or interpreted by any evidence of trade usage or course of dealing.
      2. Amendment, Modification, and Waiver. These Terms shall not be changed, modified, or amended, nor any provision waived, except by an instrument in writing signed by the Parties. The Parties acknowledge that a Party shall not by act, delay, admission, or otherwise be deemed to have waived any of its rights and remedies unless such waiver is in writing signed by the Parties.
      3. Headings. All section headings and titles are inserted herein for convenience and are without contractual significance or effect and shall not be considered in the interpretation of the respective sections.
      4. Rules of Construction. Each Party and their respective legal counsel have participated in the review of these Terms. The rule of construction to the effect that ambiguities are to be resolved against the drafting party may not be employed in the interpretation of these Terms.
      5. Severability. All provisions of these Terms are severable. If any provision of these Terms is held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of other provisions.
      6. Notices. All notices required by, or relating to, these Terms shall be in writing and deemed given if sent in accordance with the following methods:
    • If by registered or certified United States mail, return receipt requested, postage prepaid, notice shall be deemed given three (3) days after such mailing;
    • If by national overnight courier service, notice shall be deemed given the next business day; or
    • If via electronic mail, notice shall be deemed given on the same day the electronic email is sent.
      1. Force Majeure. Neither Party shall be liable for delays in the performance of any of its obligations under these Terms 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.
      2. Independent Contractor. In the performance of the Services, DAG TECH shall be, and is, an independent contractor, and is not an agent or employee of CLIENT. DAG TECH has, and shall retain, the right to exercise full control over the employment, direction, compensation, and discharge of all persons assisting DAG TECH in the performance of the Services rendered under these Terms. DAG TECH shall be solely responsible for all matters relating to the payment of its employees, including compliance with Social Security withholding, and all other regulations governing such matters.
      3. Survival of Obligations. The representations, warranties, covenants, obligations, and rights of the Parties shall survive termination, completion, or acceptance of the Services or final payment to DAG TECH.  
      4. Binding Effect. All provisions of these Terms, whether so expressed or not, shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective legal representatives, successors and permitted assigns.
      5. No Third Party Beneficiaries. Nothing in these Terms, whether express or implied, is intended to confer any rights or remedies under, or by reason of, these Terms on any persons or entities other than the Parties and their respective legal representatives, successors and permitted assigns. Nothing in these Terms is intended to relieve or discharge any obligation or liability of a third party to the Parties, nor shall any provision give a third party any right of subrogation or action over or against the Parties.
      6. No Partnership or Joint Venture. Nothing contained in these Terms 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.