DAG Tech Diamond IT Service Level Agreement
This Diamond IT Service Level Agreement (the “Agreement”), is made by and between DAG Tech, LLC (“DAG TECH”), and [Client Legal Name as defined in the checkout process] (“CLIENT”), (individually, “Party”) (collectively, the “Parties”).
The Agreement shall be effective as of the date of successful checkout and shall automatically renew monthly, unless terminated by either Party consistent with this Agreement (the “Term”).
For and in consideration of the mutual promises, terms, provisions, and conditions in this Agreement, the Parties hereby agree as follows.
Terms and Conditions
- Services. DAG TECH shall provide Information Technology Support Services (“Services”) to CLIENT. Services shall mean those services set forth in the applicable subscription plan, incorporated herein by reference, to which the CLIENT subscribes. The Services shall be subject to this Agreement, as well as DAG TECH’s Reasonable Use Policy.
- Place of Performance. To the extent necessary to perform DAG TECH’s obligations under this Agreement, 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 this Agreement. In the event the Parties cannot agree on such modification or the Parties cannot reach agreement on the access and materials provided by CLIENT under this Clause, either Party may terminate this Agreement, at their sole discretion, upon thirty (30) days’ written notice to the other Party.
- 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.
- Expenses. DAG TECH may charge CLIENT for travel fees and other expenses with the prior approval of CLIENT.
- Returns. DAG TECH may, at its sole discretion, assess CLIENT a 15% restocking fee on any returned materials.
- 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.
- Invoicing and Payment. The CLIENT shall pay DAG TECH a fee equal to 1.5% of the invoiced amount if such invoice is not paid by CLIENT within thirty (30) days of receipt. DAG TECH reserves the right to pause or cease performance if any invoice becomes past due.
- Material Breach.
- By CLIENT. Any of the following shall constitute 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 within thirty (30) days of receiptt; (ii) Breach of any of the representations, warranties, and covenants of this Agreement; and (iii) Breach of reasonable use.
- By DAG TECH. Any of the following shall constitute 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.
- Assignment. DAG TECH may assign this Agreement to an affiliate or purchaser of some or all of DAG TECH’s assets without the consent of CLIENT. CLIENT may assign this Agreement to an affiliate or purchaser of some or all of CLIENT’s assets with prior, written consent from DAG TECH. Any assignment by CLIENT without DAG TECH’s prior, written consent shall be ineffective.
- Insurance. CLIENT shall maintain insurance equal to 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 this Agreement. 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. 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.
- 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.
- 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 as a result of this Agreement, except with the prior, written consent of DAG TECH.
- Termination. Unless otherwise terminated or agreed by the Parties, the Agreement shall automatically renew on the Termination Date. DAG TECH shall provide written notice of renewal thirty (30) days prior to the Termination Date. This Agreement may be terminated only as follows:
- Termination by CLIENT. CLIENT may terminate the Agreement: (i) If the Parties cannot reach agreement on the access and materials provided by CLIENT ; (ii) upon written notice thirty (30) days in advance of the Termination Date; (iii) In the event of a material breach of this Agreement without notice or opportunity to cure and at the sole discretion of CLIENT; or (iv) In its entirety, or terminate specific schedules, before the Termination Date by providing thirty (30) days written notice to DAG TECH. 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 CLIENT and DAG TECH execute a waiver signed by both Parties.
- Termination by DAG TECH. DAG TECH may terminate the Agreement: (i) If the Parties cannot reach agreement on the access and materials provided by CLIENT; (ii) upon written notice thirty (30) days in advance of the Termination Date; or (iii) In the event of a material breach, without notice or opportunity to cure and at the sole discretion of DAG TECH.
- Confidentiality of Information.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Amendment, Modification, and Waiver. This Agreement shall not be changed, modified, or amended, nor any provision waived, except by an instrument in writing signed by the Parties. Schedule(s) may be modified upon written agreement by officers of both Parties.
- Headings. All section headings and titles are inserted herein for convenience and are without contractual significance or effect.
- Rules of Construction. 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 this Agreement.
- 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.
- Notices. All notices required by, or relating to, this Agreement shall be submitted to firstname.lastname@example.org.
- 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.
- 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.
- 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.
- Independent Contractor. It is expressly understood that in the performance of the Services, DAG TECH shall be, and is, an independent contractor.
- 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 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.
- 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.
- 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.