DAG Tech Products Terms & Conditions
Terms and Conditions for Sale of Products
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 PRODUCTS 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.
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.
- Products: means all software or hardware products available for purchase through DAG TECH’s website, including, but not limited to: Cloud Solutions; VAR Cloud Services; Microsoft and other software products; TS3; and any and all hardware.
- Terms: means these Terms and Conditions.
- 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 Products and related materials and expenses but excluding all taxes on, or measured by, the income or wealth of DAG TECH.
- Returns. DAG TECH may, at its sole discretion, assess CLIENT a fifteen percent (15%) restocking fee on any returned materials.
Material Breach. 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:
- Breach of any of the representations, warranties, and covenants of these Terms; and
- 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
- Assignment. The Parties may assign these Terms to an affiliate or purchaser of some or all of their assets without the consent of the other Party.
Limitation of Liability.
- 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.
- 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.
- Exceptions. This Section shall not apply to fraud or intentional misconduct.
- 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.
- 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.
- Limitation. The limitation of liability under Section 6 of these Terms shall apply to indemnification under this Section.
- Non-Solicitation. 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.
Data Recovery and Removal.
- Data Recovery. For thirty (30) days after the termination of these Terms, DAG TECH shall allow YOU to transfer YOUR stored data. If thirty (30) days does not provide YOU with sufficient time to transfer YOUR stored data, YOU must contact DAG TECH in writing within thirty (30) days of termination of the Terms and Services.
- Data Removal. At any time YOU may request in writing removal of data stored and managed by DAG TECH. The request will be processed by DAG TECH within seven (7) working days. If YOU do not expressly request removal, DAG TECH may store YOUR data exclusively for technical reasons up to a maximum of ninety (90) days after termination of these Terms. DAG TECH will retain YOUR account information as required for business operations and legal compliance in accordance with applicable laws.
- Personal Data Protection and Privacy. DAG TECH shall comply with applicable data protection and privacy laws.
Confidentiality of Information.
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.
- 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.
- 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.
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
- 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:
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- Exception. This Section shall not apply to injunctive relief sought under Clause 15.3 of these Terms.
Representations, Warranties, and Covenants
- 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;
- In addition to any other representations, warranties, and covenants in these Terms, the Parties represent, warrant, and covenant to each other the following:
- 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.
- 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. 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.
- 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.
- Updates to Terms. DAG TECH may change these Terms at any time provided DAG TECH tells YOU in advance of the changes. Using the Services after the changes become effective means YOU agree to the new terms. If YOU do not agree to the new terms then DAG TECH shall end the Services. All changes to the Services are subject to these Terms.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.