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DAG Tech Diamond365 IT Support ESLA Terms and Conditions_1

DAG Tech Diamond365 IT Support ESLA

Electronic Service Level Agreement

Agreement Terms and Conditions

This AGREEMENT (“Agreement”), effective on the date of the order is made by and between DAG Tech LLC (“DAG TECH”), and the Organization (CLIENT) as denoted. DAG TECH and CLIENT may be referred to collectively as the “parties” or individually as a “party”.
WHEREAS, CLIENT desires DAG TECH to provide Information Technology Services, and WHEREAS, DAG TECH desires to provide such services to CLIENT. NOW THEREFORE, for and in consideration of the mutual promises, terms, provisions, and conditions herein, the parties hereby agree as follows:

TERMS

Headings are for reference only
1. Services. DAG TECH shall provide certain Information Technology Services (“Services”) to CLIENT as selected on the order.

2. Service Component Specifics

a. 1.1 End-User support

i. DAG TECH will provide Helpdesk support of a maximum of (3) devices per user.

ii. CLIENT must provide an initial list of devices and must register new devices with DAG TECH’s approval.

iii. DAG TECH is not responsible for the back-up of individual end-user devices.

iv. DAG TECH is not providing end-user training.

b. 1.2 Smartphone support

i. DAG TECH will provide Helpdesk support of a maximum of (2) devices per user.

ii. CLIENT must provide an initial list of devices and must register new devices with DAG TECH’s approval.

iii. DAG TECH is not responsible for the back-up of individual end-user devices.

iv. DAG TECH is not providing end-user training.

v. DAG TECH is not responsible for service outages or provider billing issues.

c. 2.1 On-Site support

i. DAG TECH must approve the initial on-site location(s) and agree to logistics and working conditions.

ii. If the On-Site location(s) require modification due to moves or new openings, DAG TECH must be provided 30 days notice and must agree.

d. 2.3 Non-US locations

i. DAG TECH must approve the initial non-US location(s).

ii. DAG TECH is providing remote only support to non-US location(s) unless separately negotiated.

e. 4.3 IAD support

i. DAG TECH is providing device support and not responsible for Internet service outages or liaisons with Internet providers.

3. Representations, Warranties, and Covenants.

a. In addition to any other representations and warranties contained in this Agreement, each party represents and warrants to the other as of the date of this Agreement that

i. it is duly organized and validly existing and in good standing in the jurisdiction of its organization;

ii. it has the full right and authority to enter into, execute, deliver, and perform its obligations under this Agreement;

iii. this Agreement constitutes its legal, valid and binding obligation enforceable against such party in accordance with its terms, except as may be limited by applicable bankruptcy and other similar laws;

iv. there is no litigation, action, proceeding or investigation pending or, to the best of its knowledge, threatened before any court or other Governmental Authority by, against, affecting or involving any of its business or assets that would materially affect its ability to carry out the transactions contemplated herein;

v. its execution and performance of this Agreement does not constitute a breach of any term or provision of, or a default under any material contract or agreement to which it is a party.

b. DAG TECH covenants that it shall comply with all applicable Federal, State, local and foreign laws and regulations in the performance of the Services rendered under this Agreement.

4. Client policy. DAG TECH agrees to adhere to all policies and procedures applicable to contractors providing services to CLIENT during the term hereof, including, but not limited to, those CLIENT policies and procedures which govern the handling of sensitive and proprietary information, the nondisclosure and non-use of confidential information, and policies governing responsibilities, security, ethics and conduct on CLIENT premises or while otherwise providing services to CLIENT. CLIENT must notify and provide DAG TECH in writing with required policies and procedures.

5. Confidentiality. The parties acknowledge that during the course of this Agreement, (i) DAG TECH will have access to CLIENT information and (ii) CLIENT will have access to DAG TECH information. Parties agree that they shall not, during the term of this Agreement or at any time thereafter, knowingly use or disclose to any person, firm or corporation such Confidential Information.

Definition of Confidential Information

a. For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to the Disclosing Party and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to:

i. Any marketing strategies, plans, financial information, projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies;

ii. Plans for products or services, and customer or supplier lists;

iii. Any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method;

iv. Any concepts, mock-ups, graphics, branding, logos, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets;

v. Any other information that should reasonably be recognized as confidential information of Disclosing Parties. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. The Receiving Party acknowledges that the Confidential Information is proprietary to Disclosing Parties, has been developed and obtained through great efforts by Disclosing Parties and that Disclosing Parties regards all of its Confidential Information as trade secrets.

b. Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information which:

i. Was demonstrably known by the Receiving Party prior to receiving the Confidential Information from the Disclosing Party;

ii. Becomes rightfully known to the Receiving Party from a third-party under no obligation to Disclosing Party to maintain confidentiality;

iii. Is or becomes publicly available through no fault of or failure to act by the Receiving Party 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 law or regulation;

v. Is or has been independently developed by employees, consultants or agents of the Receiving Party without violation of the terms of this Agreement or reference or access to any Confidential Information.

6. Cancelation. CLIENT may terminate the Agreement by issuing written notice at least 10 days prior to the next billing date by emailing billing@dagtech.com. DAG TECH may terminate the Agreement by issuing written notice at least 10 days prior to the next billing date by emailing the email address provided at checkout.

7. Modification. This Agreement, including terms, and pricing may be modified without notice by DAG TECH. DAG TECH must notify CLIENT at least 30 days before their next billing cycle in order for the new Agreement to take effect. CLIENT may invoke Cancelation rights if they do not agree with the modified Agreement.

8. Arrears. DAG TECH reserves the right to pause or cease performance if any invoice becomes past due.

9. Assignment. DAG TECH may assign this Agreement to an affiliate or purchaser of some or all of the assets of DAG TECH. CLIENT may assign this Agreement to an affiliate or purchaser of some or all of the assets of CLIENT with written consent from an officer of DAG TECH.

10. Taxes. CLIENT will pay all taxes (including, without limitation, all local, state, and federal sales, use, rental, and license taxes) which 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 of DAG TECH.

11. Expenses. Travel fees and other expenses may be assessed if approved by CLIENT.

12. Limitation of Liability. In no event shall either Party 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 in an action for breach of contract, even if advised of the possibilities of such damages. The maximum liability by either party under this Agreement shall in no event exceed the total cumulative amount paid and in arrears to DAG TECH over the prior one year. The foregoing liability limitations shall not apply with respect to damages occasioned by the willful misconduct or gross negligence of either party, or disclosure of confidential information.

13. Serviced Equipment Warranty. DAG TECH is not providing warranty on equipment through this Agreement.

14. Disputes. The parties agree to exercise their best efforts to settle all disputes arising under this Agreement by mutual agreement. If agreement cannot be reached, the parties shall be free to exercise any legal or equitable remedies, which may be available under this Agreement and the law applicable thereto. The parties waive rights to trial by jury. The prevailing party of any dispute action is shall be entitled to recovery of its legal fees up to 50% the value of the determined liability.

15. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.

16. Insurance. CLIENT represents that it has procured and maintains a policy or policies of insurance in the amount equal to one hundred percent of the full insurance replacement value, without regard to devaluation for technology advances, of all computer hardware, software, systems, and data of the CLIENT. Although DAG TECH will take commercially responsible measures to avoid any activity that would jeopardize or conflict with said insurance coverage maintained by CLIENT or cause the premium charged to CLIENT to increase, DAG TECH shall not be responsible for damage to any of the CLIENT’S computer equipment or data. CLIENT’s liability coverage will extend to include all DAG TECH staff and consultants and their services during the performance of this agreement.

17. Notices. Any notices, requests, demands or other communications provided by this Agreement shall be in writing and shall be effective when delivered in person or mailed, postage prepaid, registered or certified, and addressed to all parties.

18. Amendment. No amendment, modification, consent or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by an officer of each of the Parties.

19. Force Majeure. Neither Party shall be liable for delays in the performance of any of its obligations hereunder due to causes beyond its reasonable control, which shall include acts of God, strikes and governmental authorities.

20. Enforceability. The invalidity or unenforceability of any portion of this Agreement shall not affect or limit the validity or enforceability of its remaining provisions. In case any one or more provisions of this Agreement shall for any reason be held invalid or unenforceable in any respect, such invalid or unenforceable provision(s) shall be modified and/or construed so that it will be valid and enforceable to the maximum extent permitted by law if such modification or construction reflects the true intent of the parties hereto.

21. 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.

22. 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 with whom CLIENT comes in contact with as a result of this Agreement, except with the express prior written permission of DAG TECH.

23. Indemnification. Each party agrees to indemnify, protect, defend and hold harmless the other party, and their respective officers, directors, shareholders, agents and employees and their respective heirs, legal representatives, successors and assigns, from and against any and all liabilities, losses, damages, claims and expenses (including reasonable attorneys’ fees and disbursements) of any kind at any time relating to, arising out of or resulting from loss or damage to property or any death or sickness or injury to any person resulting directly from the negligent or intentional acts or omissions of such party or any of its subcontractors and any claim of loss or damage arising out of a party’s failure to comply with or violation of applicable laws. Notwithstanding any other provision of this Agreement, this obligation of indemnity shall not be limited.

24. Compliance. DAG TECH is not responsible for adherence to any specific standards or compliance guidelines.

25. Governing Law. The laws of New York, without regard to its conflicts of law provisions, shall govern the construction, validity, performance, and effect of this Agreement for all purposes. The parties hereto consent to personal jurisdiction of the courts in New York and agree that proper venue for any action hereunder shall be in New York.

26. Entire Agreement. This Agreement contains the entire understanding of the parties hereto with respect to subject matters contained herein and supersedes any prior written or oral agreements

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.