DAG Tech Estore Sales Terms and Conditions
THESE TERMS AND CONDITIONS (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU, THE CLIENT, AND DAG TECH, AND GOVERN YOUR USE OF AND ACCESS TO ALL DAG TECH’S SERVICES AS DEFINED IN THESE TERMS AND CONDITIONS.
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 Services, as defined below.
The Agreement will be effective on the date YOU purchase Services and will automatically renew monthly, unless terminated by either Party consistent with this Agreement (the “Term”).
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.
Services: means Cloud Solutions; Project IT; IT Assessment; and Hardware, unless otherwise noted.
Terms: means these Terms and Conditions.
2.1 Definition. DAG TECH shall provide Services to CLIENT, as defined above, and based on the services that YOU, as the CLIENT, selected through the DAG TECH E-Store. 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.
2.2 Taxes. Each Party is responsible for their own taxes consistent with applicable law.
2.3 Expenses. DAG TECH may charge CLIENT for travel fees and other expenses with the prior approval of CLIENT.
2.4 Returns. CLIENT may order materials in addition to the Services. These orders may 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.
2.5 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.
2.6 Billing and Payments. Payment by CLIENT will be due in advance at the beginning of each month or at the time of purchasing specific Services (e.g. hardware) 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.
3. MATERIAL BREACH
3.1 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 this Agreement; (ii) Breach of any of the representations, warranties, and covenants of this Agreement; and (iii) Breach of reasonable use.
3.2 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) Breach of any of the representations, warranties, and covenants.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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 this Section.
9.1 Termination by CLIENT. CLIENT may terminate the Agreement due to a material breach. CLIENT may also terminate this Agreement with or without cause upon written notice consistent with Clause (d) of this Section or upon an amendment or modification to which CLIENT does not agree by no longer using the Services. After notice of termination in accordance with this Section, 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.
9.2 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.
9.3 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.
9.4 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.
10. CONFIDENTIALITY OF INFORMATION
10.1 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.
10.2 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.
10.3 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.
10.4 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.
11. DISPUTE RESOLUTION AND GOVERNING LAW
11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 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.
11.6 Exception. This Section shall not apply to injunctive relief sought under Clause 15.3 of these Terms.
12. REPRESENTATIONS, WARRANTIES, AND COVENANTS
12.1 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.
12.2 Disclaimer. Except for the express warranties in these Terms, DAG TECH makes no representations or warranties whatsoever, express or implied, either in fact or by operation of law with respect to the Services, including, but not limited to, Cloud Services and Hardware. 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.
13.1 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.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
13.6 Notices. All notices required by, or relating to, these Terms shall be in writing and deemed effective if sent in accordance with the following methods: (i) If sent by registered or certified United States mail, return receipt requested, postage prepaid, notice shall be deemed effective three (3) business days after such mailing; (ii) If sent by national overnight courier service, notice shall be deemed effective the next business day; or (iii) If sent via electronic mail between 12am and 5pm Eastern Standard Time, excluding weekends and US bank holidays, notice shall be deemed effective on the same business day the electronic email is sent. Notice via electronic mail sent between 5:01pm and 11:59pm Eastern Standard time shall be deemed effective on the next business day, excluding weekends and US bank holidays. Notice via electronic email during weekends and US bank holidays shall be deemed effective on the next business day.
13.7 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; plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other staff restrictions; or acts of federal, state, or local authorities.
13.8 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.
13.9 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.
13.10 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.
13.11 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.
13.12 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.
13.13 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.