DAG Tech TS3 Service Level Agreement
Terms and Conditions for the DAG Tech Technology Support & Security Suite (TS3)
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 TECHNOLOGY SUPPORT & SECURITY SUITE (TS3).
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.
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.
Early Termination: means terminating the Services and these Terms before the end of the Subscription Term.
Party: means either DAG TECH or YOU, the CLIENT. The plural, Parties, means both DAG TECH and YOU, the CLIENT.
Services: means DAG TECH’s Technology Support & Security Suite (TS3).
Service Levels: means the uptimes and response times as set forth in Section 11 of these Terms.
Subscription Term: means period between which the CLIENT purchases the Services and when the Services and these Terms terminate.
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.
2.2 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.
2.3 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.
2.4 Expenses. DAG TECH may charge CLIENT for travel fees and other expenses with the prior approval of CLIENT.
2.5 Returns. DAG TECH may, at its sole discretion, assess CLIENT a fifteen percent (15%) restocking fee on any returned materials.
2.6 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.
2.7 Billing and Payments. YOU shall be billed a Subscription Fee 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 an Automated Clearing House (“ACH”) or credit card transaction is declined, DAG TECH may, at its sole discretion, terminate these Terms unless valid credit card or ACH information is provided to DAG TECH within thirty (30) days of YOU receiving notice from DAG TECH of the declined transaction. Purchases of the Services shall be prorated for any partial month on a calendar day basis. CLIENT agrees that DAG TECH may change the pricing and fees for the Services at any time upon in accordance with Section 18.2 of these Terms.
3. MATERIAL BREACH
3.1 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:
* Breach of any of the representations, warranties, and covenants in Section 17 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.
4.1 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.
4.2 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.
4.3 Assignment Ineffective. Any assignment by CLIENT without DAG TECH’s prior, written consent shall be ineffective.
5.1 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.
5.2 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.
6. LIMITATION OF LIABILITY
6.1 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.
6.2 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.
6.3 Exceptions. This Section shall not apply to fraud, intentional, willful, or wanton misconduct.
7.1 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.
7.2 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.
7.3 Limitation. The limitation of liability under Section 6 of these Terms shall apply to indemnification under this Section.
8.1 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.
9.1 These Terms may be terminated in accordance with this Section. Unless otherwise terminated, the Services and these Terms shall renew automatically upon thirty (30) days’ written notice.
9.2 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.
9.3 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.
10. TERMINATION FEE
10.1 CLIENT acknowledges and agrees that DAG TECH will incur substantial losses upon Early Termination of the Services by CLIENT or CLIENT’s material breach of these Terms. Such losses include, but are not limited to: substantial upfront costs for the provision of the Services; allocation of substantial labor force resources to mobilize for the provision of the Services; and incurring substantial opportunity costs and lost profits. CLIENT acknowledges and agrees that the precise losses incurred by DAG TECH as a result of CLIENT’s Early Termination or CLIENT’s material breach of these Terms are difficult to ascertain, and the early termination fee under this Section is a fair and reasonable estimate of DAG TECH’s anticipated and actual damages, and not a penalty. If CLIENT terminates these Terms for convenience in accordance with Section 9 above or DAG TECH terminates these Terms due to CLIENT’s material breach, CLIENT shall pay a termination fee in an amount equal to the monthly Subscription Fee times each month that remains in the Term, calculated pro rata from the date notice of termination is deemed effective in accordance with these Terms. The Early Termination Fee shall not apply if CLIENT terminates for convenience in response to a fee or price increase by DAG TECH.
11. SERVICE LEVELS
11.1 DAG TECH agrees to make commercially reasonable efforts to meet the following uptimes and response times with respect to the Services (“Service Levels”). If DAG TECH does not meet the Service Levels, DAG TECH agrees to provide Service Credits, if applicable, in accordance with Section 12 of these Terms.
a. Uptimes. DAG TECH shall adhere to the following uptimes:
a. Remote Support. DAG TECH shall provide remote support 24 hours per day, 7 days per week, 365 days per year.
b. On-Site Support. DAG TECH shall provide on-site support as non-holiday, non-government closing business days between 9:00am and 6:00pm.
b. Response times. DAG TECH shall adhere to the following response times as determined by the notice provisions in Section 18.7 of these Terms and provided CLIENT submits support requests through DAG TECH voicemail, email, or Helpdesk.
a. Remote Support. DAG TECH shall acknowledge all CLIENT support requests within 15 minutes and respond within one (1) hour.
b. On-Site Support. DAG TECH shall provide on-site support within two (2) hours of receipt of the request. If CLIENT submits a regular priority support request DAG TECH shall provide on-site support within four (4) hours of receipt of the request.
12. NON-PERFORMANCE AND SERVICE CREDITS
12.1 Unless otherwise provided in these Terms, CLIENT’s sole and exclusive remedy for any unavailability, non-performance, or other failure by DAG TECH to meet the Service Levels is the receipt of a Service Credit, as defined in this Section. DAG TECH’s payment of a Service Credit to CLIENT is in recognition of the diminished value of the Services resulting from DAG TECH’s failure to meet the Service Levels and not as a penalty. Service Credits are calculated as a percentage of the total monthly fees paid by CLIENT. DAG TECH shall pay to CLIENT Service Credits as follows: (i) If during the course of a month DAG TECH meets less than 98% of the Service Levels but equal to or greater than 97% of the Service Levels, DAG TECH shall pay CLIENT a 3% credit; (ii) If during the course of a month DAG TECH meets less than 97% of the Service Levels but equal to or greater than 96% of the Service Levels, DAG TECH shall pay CLIENT a 4% credit; and (iii) If during the course of a month DAG TECH meets less than 96% of the Service Levels, DAG TECH shall pay CLIENT a 5% credit.
13. DATA RECOVERY AND REMOVAL
13.1 Data Recovery. For thirty (30) days after the termination of these Terms and Services, 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.
14.1 Use of Data. DAG TECH may collect, use, transmit, process, and maintain information about YOU when YOU register for the Services. DAG TECH will use this information to perform under these Terms and to provide the Services to YOU.
15. CONFIDENTIALITY OF INFORMATION
15.1 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.
15.2 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.
15.3 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.
15.4 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.
16. DISPUTE RESOLUTION AND GOVERNING LAW
16.1 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.
16.2 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.
16.3 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.
16.4 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.
16.5 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.
16.6 Exception. This Section shall not apply to injunctive relief sought under Clause 15.3 of these Terms.
17. REPRESENTATIONS, WARRANTIES, AND COVENANTS
17.1 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.
17.2 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. 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.
18.1 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.
18.2 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.
18.3 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.
18.4 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.
18.5 Reasonable Use. 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: (i) Use of DAG TECH subscription 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; (ii) Usage that is unduly burdensome; (iii) Usage in excess of usage metrics; (iv) Usage that circumvents restrictions imposed by DAG TECH’s subscription plans; (v) Usage that violates reasonable use limits for specific services, as determined by DAG TECH at its sole discretion; and (vi) 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 this Section. Usage by CLIENT in violation of this Section shall constitute a material breach of these Terms, entitling DAG TECH to immediately terminate the Services and Terms without notice or opportunity to cure.
18.6 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.
18.7 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.
18.8 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.
18.9 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.
18.10 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.
18.11 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.
18.12 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.
18.13 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.