Each Statement of Work (SOW) and/or Quotation (as defined herein) issued by Complete Works, Inc. (“CWI”) is an offer to sell Products and/or Services (as herein defined) to purchaser (“Customer”) and includes, is governed by, and Customer agrees to be bound by, this Master Services Agreement (the “Agreement”). CWI’s SOW and/or Quotation and this Agreement shall be deemed accepted by Customer upon CWI’s receipt of a purchase order or a signed SOW. Acceptance of CWI’s SOW and/or Quotation and this Agreement is expressly limited to the terms contained in the SOW and/or Quotation and this Agreement.

 

Customer and CWI are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties.” 

 

1.                 DEFINITIONS

 

Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Work, unless the language or context requires otherwise. SOW-specific definitions, if any, shall be included in the applicable SOW, and shall apply only with respect to such SOW. As used in this Agreement:

 

“Agreement” means this Master Services Agreement and all Statements of Work, schedules, and attachments attached hereto or to or otherwise made a part of this Agreement.

 

“Confidential Information” means any information furnished by Discloser to Recipient during the term of this Agreement, including, without limitation, pricing, methods, processes, financial data, lists, statistics, software, systems or equipment, programs, research, development, strategic plans, operating data, or related information of each of the parties and/or its or their customers and suppliers, concerning past, present, or future business activities of said entities. This Agreement is the Confidential Information of CWI. All other Confidential Information must be clearly designated as “Confidential.” Information provided orally will be considered confidential only if a written memorandum of such information clearly designated as marked “Confidential” is delivered to Recipient within thirty (30) days of the Disclosure. As to any particular Confidential Information, “Discloser” means the Party disclosing the Confidential Information and the “Recipient” means the Party receiving the Confidential Information.

 

“Content” means information, software, Customer Data, and other data including, without limitation, HTML files, scripts, programs, recordings, sound, music, graphics, and images that Customer or any of its Users create, install, upload, or transfer in or through a Customer device or Customer’s network.

 

“Customer Components” means the hardware, software, other products, and other Content including, without limitation, those specified in a SOW as being provided by Customer.

 

“Customer Data” means all data and information about Customer’s business(es), customers, employees, operations, facilities, products, markets, assets or finances that CWI obtains, creates, generates, collects, or processes in connection with its performance of Services and is stored in any Customer device or on the Customer network.

 

“Disclosure” means the release, publication, or dissemination of Confidential Information by a Party and excludes the release, publication, or dissemination of Confidential Information by a third party.

 

“Effective Date” means, the first date a SOW or Quotation is accepted by Customer.

 

“Hosting Services” means the services delivered by CWI under this Agreement consisting of, but not limited to, network, storage, and server devices, software programs, applications network management devices, and other items specified in a Statement of Work. Hosting Services are governed by this Master Services Agreement and Addendum B, “Terms Specific to Hosting Services” attached hereto and incorporated herein by reference.

 

“PCR” means a project change request (change order) signed by both Parties authorizing a change in the scope of the Services.

 

“Products” means any order for software, hardware, or Resold Services (“Products”) made by Customer pursuant to a quotation issued by CWI (“Quotation”). Orders for Products are governed by this Master Services Agreement and Addendum A, “Terms Specific to Product Sales Only” attached hereto and incorporated herein by reference.

 

“Required Consents” means any consents, licenses, or approvals required to give CWI, or any person or entity acting for CWI under this Agreement, the right or license to access, use, and/or modify in electronic form and in other forms, including without limitation, derivative works, the Customer Components and Content.

“Services” means the information technology services to be delivered by CWI under this Agreement as specified in any Statement of Work and does not include Third Party Services. Services may include Hosting Services where included in a SOW.

 

“Statement of Work” or “SOW” shall have the meaning ascribed to it in Section 2.1 (Agreement Structure).

 

“Third Party Services” means the information technology services to be delivered by a third party under this Agreement as specified in any Statement of Work.

 

“User” means any entity or individual that receives or uses the Services, or the results or products of the Services, through Customer.

 

2.                 GENERAL

 

2.1.            Agreement Structure. This Agreement contains general contractual terms for all information technology services to be provided by CWI. The specific information technology services that CWI will provide, applicable pricing and payment terms, service level agreement, if any, and other transaction-specific provisions will be agreed upon through statements of work (each a “Statement of Work” or “SOW”). Each SOW shall be signed by both Parties and will be deemed to incorporate all of the provisions of this Agreement by reference. Each SOW will be a separate agreement between CWI and Customer.

 

2.2.            Order of Precedence. In the event of any inconsistencies between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement shall control. The Parties may specify in the applicable SOW that a particular provision of the SOW is to supersede a provision of this Agreement, in which case the superseding SOW provision(s) shall be applicable only to such SOW and shall be effective for such SOW only if such provision(s) expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision(s) supersedes the conflicting or inconsistent provision in this Agreement. Unless expressly agreed to in writing by CWI, CWI rejects any terms and conditions contained in Customer’s documents (e.g. purchase orders or other order documents).

 

3.                 SERVICES

 

3.1.            Scope of Services.  Subject to the terms and conditions in this Agreement and the applicable SOW, CWI will use commercially reasonable efforts to perform the Services described in the applicable Statements of Work. 

 

3.2.            Designated Contact Persons.  Each Party shall designate an individual who will be a primary point of contact and will have the authority to act and make decisions in all aspects of the Services, including PCRs, on behalf of their company. Customer shall make available all technical matter, data, information, operating supplies, and computer system(s), as reasonably required by CWI. Either Party may change its designated contact person by providing written notice to the other Party.

 

3.3.            Changes. In the event Customer wishes to add additional programs, applications or data sources, systems servers, network devices of any kind (hubs, routers, switches), or otherwise requests an expansion in the scope of the Services, then Customer shall present its request for such alterations of its network to CWI for scoping. No alterations will be permitted under this Agreement without a signed PCR.

 

4.                 FEES AND PAYMENT TERMS

 

4.1.            Invoices. All invoices shall be due and payable within (fifteen) 15 days after the invoice date. Customer agrees to pay a late payment charge at the rate of one and one-half percent (1.5%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or portion thereof) that any payment is thirty (30) days past due. CWI may apply any payment received to any delinquent amount outstanding. Without limiting the foregoing, if Customer’s account remains unpaid for thirty (30) days or more past the due date, CWI reserves the right to suspend all Services until all such overdue amounts (and any applicable interest charges, as specified above) are paid. In addition, Customer agrees to reimburse CWI for all expenses incurred in connection with the collection of amounts payable hereunder, including contingent fees, court costs, and reasonable attorneys' fees. All deliverables will be the property of CWI until payment in full is received.

 

4.2.            Reimbursable Expenses. Except as may otherwise be stated in the applicable SOW, Customer agrees to reimburse CWI all reasonable and customary pre-approved out-of-pocket expenses, including, but not limited to, airfare, rental car, mileage, tolls, and lodging expenses, incurred by CWI in connection with the performance of services. Reimbursable expenses shall be invoiced on a monthly basis. Upon request by Customer, CWI shall provide copies of documentation for such expenses.

 

4.3.            Taxes. The amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer shall pay all taxes levied and duties assessed by any authority based upon this Agreement, excluding any taxes based upon CWI’s income. This provision shall not apply to any taxes for which Customer is exempt and for which Customer has furnished CWI with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

5.                 INFORMATION SECURITY

 

5.1.            Security Measures. CWI will maintain commercially reasonable security measures that are designed to (a) ensure the security of Customer Data; (b) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (c) protect against any unauthorized access to or use of the Customer Data. 

 

5.2.            Audits by Customer. Customer shall have the right to review CWI’s security measures prior to the commencement of the Services.

 

6.                 CUSTOMER RESPONSIBILITIES

 

6.1.            Content. Customer is solely responsible for: (a) all Content including, without limitation, its selection, creation, design, licensing, installation, accuracy, maintenance, testing, backup and support; (b) all copyright, patent and trademark clearances in all applicable jurisdictions, and usage agreements for any and all Content; (c) the selection of controls on the access and use of Content; and (d) the selection, management, and use of any public and private keys and digital certificates it may use with the Services. 

 

6.2.            Required Consents.  Customer shall obtain and keep in effect all Required Consents necessary for CWI to perform all of its obligations as set forth in this Agreement including without limitation, those with internet circuit providers and mobile device carriers. Upon request, Customer will provide to CWI evidence of any Required Consent. CWI will be relieved of its obligations to the extent that they are affected by Customer’s failure to promptly obtain and provide to CWI any Required Consents.

 

6.3.            Software. All software in Customer’s environment must be properly licensed from authorized sources. CWI will be relieved of its obligations to the extent that they are affected by Customer’s failure to provide properly licensed software specified as being required in any SOW at the level required for CWI to perform the Services required under this Agreement. Customer grants CWI, at no charge, the right to use any Customer-owned or developed application software systems required by CWI to provide the Services specified in any SOW to Customer.

 

6.4.            Security. Unless CWI is providing security services under a SOW, Customer shall: (a) use reasonable security precautions in connection with its use of the Services, i.e., maintain up-to-date virus scanning and operating system security patches and firewall protection; and (b) require each User to use reasonable security precautions, i.e., maintain up-to-date virus scanning and operating system security patches and firewall protection. In addition, Customer shall not take any action or install any software that may preclude or impair CWI’s ability to access or administer its network or provide the Services.

 

6.5.            Encryption. Customer shall encrypt at the application level Confidential Information, Customer Data, and all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Customer's contractual obligations to others. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver's license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated thereunder) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated thereunder).

 

7.                 CONFIDENTIAL INFORMATION

 

7.1.            Restrictions on Use; Non-Disclosure. Recipient agrees that it will use the same care and discretion to avoid Disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish, or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not: (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers, agents, and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement.

 

7.2.            Exceptions. The obligations set forth in Section 7.1 (Restrictions on Use; Non-Disclosure) shall not apply to Confidential Information that: (a) before the time of its Disclosure, was already in the lawful possession of the Recipient; (b) at the time of its Disclosure to Recipient, was already available to the general public, or after Disclosure to Recipient by Discloser, becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully and independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement.

 

7.3.            Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.

 

7.4.            Disposal of Confidential Information. Upon termination of this Agreement or upon Discloser’s request at any time, Recipient agrees to promptly return to Discloser all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Recipient shall promptly certify to Discloser that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed. CWI will return to the Customer, all Customer Data in its possession at the date of termination in its then-existing format and on its Customer-supplied media, however, CWI may keep a copy in accordance with its record retention policy. Any conversion of format or media performed by CWI in order to discharge its obligations under this Section 7 (Confidential Information) shall be at Customer’s expense.

 

7.5.            Remedies. The Parties acknowledge and agree that a breach of this Agreement by either Party may cause continuing and irreparable injury to the other’s business as a direct result of any such violation for which the remedies at law may be inadequate and that Discloser shall therefore be entitled and to seek to obtain a temporary restraining order and injunctive relief against the other Party, without posting a bond or other security, to prevent any violations thereof, and, in addition, any other appropriate equitable relief.

 

7.6.            Duration. The obligations set forth in this Section 7 (Confidential Information) shall apply during the term of this Agreement and for a period of one (1) year thereafter. 

 

8.                 OWNERSHIP RIGHTS

 

8.1.            Services. CWI retains all right, title, and interest in the Services and in all improvements, enhancements, modifications, or derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, and trademark. The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and Customer agrees not to disclose such information to any third party without CWI’s prior permission. CWI grants Customer a limited, non-exclusive, non‑transferable, non-sublicensable, revocable license during the term of the applicable SOW to use the Services.

 

8.2.            Content. CWI acknowledges and agrees that all Content, including copyrights, trademarks, database rights, and other intellectual property contained in such Content are owned or licensed by Customer. Customer grants CWI a license to store, record, transmit, and display the Content solely to perform CWI’s obligations under this Agreement. 

 

9.                 REPRESENTATIONS AND WARRANTIES

 

9.1.            By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is in compliance, and will continue to comply during the term of this Agreement, with all laws and regulations governing its possession and use of Customer Data and its provision or use of the Services; and (c) it has the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement.

 

9.2.            By Customer. Customer represents and warrants to CWI that: (a) it owns, or is a licensee of, having the right to sublicense, the Content and that Customer has the right to grant CWI the rights that Customer purports to grant in this Agreement; (b) CWI’s possession or use of the Content or Customer Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party; and (c) it will not use, nor will it allow any third parties under its control to use, the Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.

 

9.3.            By CWI. CWI represents and warrants to Customer that:

 

9.3.1.     Industry Standards. The Services shall be performed in a good, workmanlike, professional, and conscientious manner by experienced and qualified employees of CWI according to the generally accepted standards of the industry to which the Services pertain. Services will be deemed accepted by Customer if not rejected for non-conformance in a reasonably detailed writing submitted to CWI within five (5) days of performance of Services. Upon confirmation of the non-conformance, CWI will use commercially reasonable efforts to take the steps necessary to correct the non-conformance at no charge to Customer. This is Customer’s sole and exclusive remedy for breach of this warranty.

 

9.3.2.     Service Levels. The Services will meet the technical standards of performance or service levels, if any, set forth in the applicable SOW. Customer’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable SOW. 

 

9.3.3.     Staffing Placement Services: CWI warrants that any consultant provided to Customer will have the qualifications and hold the certifications represented to Customer by CWI. CWI makes no other representations or warranties with respect to the staffing placement Services to be provided.

 

Customer is not authorized to make, and Customer shall not make, any representations or warranties on behalf of CWI to any third party. Customer shall be solely responsible and liable for any representations or warranties that Customer makes to any third party regarding CWI, the Services, or any other aspect of this Agreement. CWI makes no representations or warranties with regard to the Third Party Services and passes through to Customer the terms and conditions for the services delivered by a third party.

 

9.4.            Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9 (REPRESENTATIONS AND WARRANTIES), NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF CWI IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF CWI. CUSTOMER IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES. IN ADDITION, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE, SUBJECT TO INTERRUPTION OR DISRUPTION, AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH CWI CANNOT BE HELD LIABLE.

 

10.              INDEMNIFICATION

 

10.1.         Indemnification by CWI. Subject to the terms and conditions in this Agreement, CWI will, at its cost, (i) defend Customer and its officers, directors, shareholders, employees, agents, successors and assigns (collectively the “Customer Indemnified Parties”) from and against any claim, suit, action, or proceeding (threatened or otherwise) (each a “Claim”) made or brought by a third party against Customer Indemnified Parties to the extent based upon (a) any breach by CWI of any of it representations and warranties under Section 9.1 (Representations and Warranties). By Each Party); (b) real property damage or personal injury, including death, solely and directly caused by CWI’s employees or contractors in the course of performance under this Agreement; (c) any breach by CWI of Section 7 (Confidential Information) to the extent the Disclosure is the result of actions predominantly attributable to CWI; (d) any uncured breach by CWI of its obligations under Section 5 (Information Security); and (e) any allegation that Customer’s receipt of the Services under this Agreement infringes any of such third party’s copyrights, or any such third party’s patents issued in the United States as of the Effective Date, or misappropriates any of such third party’s trade secrets (each an “IP Claim”); and (ii) CWI shall pay any final award of damages (or settlement amount approved by CWI in writing and) paid to the third party that brought any such Claim.

 

10.2.         Indemnification by Customer. Customer will indemnify, defend, and hold harmless CWI and its officers, directors, shareholders, employees, agents, successors and assigns from any and all liabilities, damages, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claim, suit or proceeding (threatened or otherwise) made or brought by a third party against CWI or its officers, directors, shareholders, employees, agents, successors and assigns based upon (a) any breach by Customer of any of it representations and warranties under Section 9 (Representations and Warranties); (b) real property damage or personal injury, including death, directly caused by Customer; (c) any breach by Customer of Section 7 (Confidential Information) to the extent the Disclosure is the result of actions predominantly attributable to Customer; (d) any breach by Customer of its obligations under Section 6.2 (Required Consents) or Section 6.5 (Encryption); (e) any breach by Customer of Section 13.2 (Export Compliance); and (f) any claim that CWI’s possession, storage, or transmission of the Content or possession or use of the Customer Components, infringes on, violates, or misappropriates any patent, copyright, trademark, service mark, trade secret, or other intellectual property or proprietary rights of a third party.

 

10.3.         Procedure. A Party (or other person) having a right to defense and indemnification under this Agreement (“Indemnified Party”) that desires such indemnification shall tender to the Party having an obligation to defend and indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly in writing of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 10 (Indemnification). The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Claim. In no event shall either Party make any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.

 

10.4.          Mitigation for IP Claims. At any time after notice of an IP Claim, or if CWI believes there is a basis for an IP Claim, CWI has the right, at CWI’s sole option and expense, to either (a) procure the right for Customer to continue receiving the Services as provided in this Agreement, or (b) replace or modify the applicable Service with a service that has substantially similar functionality and that CWI believes would not be subject to the IP Claim. If CWI deems (a) or (b) not feasible or not commercially reasonable, CWI has the right to terminate the applicable SOW. In the event of any such termination, CWI will refund to Customer the unused portion of any amounts paid by Customer for the affected Service. In addition, upon any such termination, Customer shall cease the use of the applicable Service.

 

10.5.          Limitations as to IP Claims.  Notwithstanding anything to the contrary, CWI shall have no obligations or liability under Section 10.1 (Indemnification by CWI) if the IP Claim is based upon, arises out of, or is related to, in whole or in part, or if any of the following apply: (a) the combination of the applicable Service with any product, software, solution, or service not entirely developed and provided by CWI, (b) use of the applicable Service outside the scope of the licenses or rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement, (c) Customer’s failure to comply with CWI’s direction to cease any activity that in CWI’s reasonable judgment may result in an IP Claim, (d) any allegation by a third party that does not specifically reference a CWI Service, or that does not reference a feature of function of a CWI Service, or (e) any IP Claim for which Customer does not promptly tender control of the defense thereof to CWI.

 

10.6.         Sole Remedy. THE TERMS IN THIS SECTION 10 (INDEMNIFICATION) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CWI’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10 (INDEMNIFICATION), CWI SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CUSTOMER FOR THIRD PARTY CLAIMS.

 

11.              LIMITATION OF LIABILITY

 

11.1.         Limit on Types of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL (AND CWI’S SUPPLIERS AND LICENSORS WILL NOT) BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY CLAIMING THROUGH A PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, or punitive DAMAGES (INCLUDING, without limitation, LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT, ANY SOW, OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, tort, STRICT LIABILITY AND NEGLIGENCE), EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (b) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (c) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOW FAILS OF ITS ESSENTIAL PURPOSE.

 

11.2.         Limit on the Amount of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CWI’s TOTAL CUMULATIVE liability UNDER OR RELATING TO THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY, AND NEGLIGENCE), shall be limited in all cases to AN AMOUNT which shall not exceed, in the aggregate, fees paid by Customer to CWI during the six (6) month period immediately preceding the first event giving rise to liability FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND under the applicable SOW. 

 

11.3.         Non-Managed Systems. CWI shall not be liable for any damage caused by services, systems, software, or other components that neither it nor its employees, agents or subcontractors furnish or manage pursuant to this Agreement.

 

11.4.         Applicability. The terms in this Section 11 (Limitation of Liability) shall apply to the maximum extent permitted by applicable law. If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions or capping its liability for certain acts or omissions, then the terms in this Section 11 (Limitation of Liability) shall apply to not limit liability for such acts and omissions, but will apply for all other acts and omissions.

 

11.5.         Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 (LIMITATION OF LIABILITY) REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CUSTOMER FOR THE SERVICES WOULD HAVE BEEN HIGHER.

 

12.              TERM AND TERMINATION

 

12.1.         Term

 

12.1.1.  This Agreement. This Agreement shall commence on the Effective Date and remain in effect until terminated by either party as provided in this Section 12 (Term and Termination).

 

12.1.2.  Statement of Work. The term of each SOW shall be as specified in that Statement of Work.

 

12.2.         Termination for Convenience. Either Party may terminate this Agreement for convenience at any time upon written notice to the other Party. If there are any active Statements of Work, termination shall be effective upon the expiration or termination of the last Statement of Work. If there are no active Statements of Work, termination shall be effective upon receipt of the written notice.

 

12.3.         Termination for Breach.  Either Party may terminate this Agreement or any individual SOW in accordance with subsection 12.3.1 (Cure) (in certain circumstances where an opportunity to cure must be provided) or subsection 12.3.2 (No Opportunity to Cure) (in certain circumstances where an opportunity to cure is not available).

 

12.3.1.  Cure. If the other Party breaches any material provision of this Agreement or any SOW and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching Party (“Cure Period”), then a Party can provide notice of termination. The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of the breach and how the breach can be cured within the Cure Period. If the breaching Party fails to cure the breach within the Cure Period, then termination shall be effective on the thirty-first (31st) day following receipt of such notice by the breaching Party.

 

12.3.2.  No Opportunity to Cure. If: (a) the other Party breaches any representation or warranty in this Agreement, subject to the limitation set forth in Section 9.3.2 (Service Levels); (b) any representation or warranty is inaccurate, incomplete, false or misleading in any material aspect; or (c) the breach is of a type or nature that is not capable of being cured within such time period (such as, by way of example and not limitation, an obligation relating to Confidential Information, then a Party can provide notice of termination).  The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of any breach. Termination shall be effective immediately upon receipt of such notice by the breaching Party.

 

12.4.         Termination for Financial Insecurity. Either Party may terminate this Agreement and all SOWs upon written notice if the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization. Termination shall be effective upon receipt of the written notice.

 

12.5.         Final Payment. Within thirty (30) days after any termination of this Agreement or individual SOW, CWI will submit to Customer a final itemized invoice for all fees and expense due and owing by Customer. Customer shall pay the invoice in accordance with Section 4.3 (Taxes).

12.6.         Effects of Termination.  Upon termination of this Agreement or an individual SOW and CWI’s receipt of payment by Customer of the final invoice described in Section 12.5 (Final Payment), CWI will, to the extent applicable, exercise reasonable efforts and cooperation to effect an orderly and efficient transition of Services to any successor provider identified by Customer. Any transition services requested by Customer shall be provided by CWI on a time and material basis. CWI reserves the right to require prepayment for any transition services.

                       

12.7.         Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination. Without limiting the generality of the foregoing statement, Sections 8 (Ownership Rights); 9 (Representations and Warranties); 10 (Indemnification); and 11 (Limitation of Liability) shall survive any termination of this Agreement.

 

13.              MISCELLANEOUS

 

13.1.         Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform, which delay or failure is due to causes or circumstances beyond its control and without its fault or negligence, including acts of civil or military authority, national emergencies, labor strikes, fire, flood or catastrophe, acts of God, insurrection, war, riots or failure of transportation or a general and/or city-wide power failure. Each Party shall use reasonable efforts to mitigate the extent of the aforementioned excusable delay or failure and their adverse consequences, provided however, that should any such delay or failure continue for more than thirty (30) days, the Agreement may be terminated without liability by the non-delaying Party.

 

13.2.          Export Compliance. Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Customer shall be solely responsible for such compliance with respect to Customer Data and the Content that it provides to CWI.

 

13.3.         Insurance. Each Party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, cyber liability, and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement. For the avoidance of doubt, each Party is solely responsible for insuring its personal property wherever located and each Party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite Party. 

 

13.4.         Waiver. The failure of either Party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights and the obligations of the Party with respect to such future performance and shall continue in full force and effect.

 

13.5.         Assignment. Neither party may assign its rights or delegate its duties or obligations under this Agreement without the other party’s prior written consent, such consent which shall not unreasonably be withheld. Notwithstanding the forgoing, CWI may assign this Agreement without the prior written consent of Customer in connection with the acquisition of CWI or the sale of all or substantially all of its assets.

 

13.6.         Agreement Binding On Successors. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assignees of the respective Parties.

 

13.7.         Governing Law and Jurisdiction. The validity, construction and interpretation of this Agreement and the rights and duties of the Parties hereto, shall be governed by and construed in accordance with the laws of the State of North Carolina, excluding its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought either in the federal court in the Western District of North Carolina or state courts located in Mecklenburg County, North Carolina, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

 

13.8.         Relationship of Parties.  The Parties hereto are independent contractors and this Agreement shall not create or imply an agency relationship between the Parties. Pursuant to and during the term of this Agreement, CWI may, from time to time, request that the Customer execute such instruments and documents appointing CWI an agent of the Customer for a specific limited purpose. An officer of Customer shall, in a timely manner, execute and deliver to CWI or the third party requiring the same, such instruments designating CWI as Customer’s agent to the extent required by CWI to manage and perform the Services provided by it under this Agreement.

 

13.9.         Subcontractors. CWI may engage subcontractors to perform services under any SOW. Except as provided herein, CWI shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees. 

 

13.10.      Severability. In the event that any of the provisions of this Agreement are declared or held by a court of competent jurisdiction invalid, illegal or unenforceable, the unaffected portions of this Agreement shall be unimpaired and remain in full force and effect. In the event of such a ruling, the Parties shall negotiate in good faith a substitute for the provision declared invalid, illegal or unenforceable.

 

13.11.      Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if hand delivered or sent by first-class certified or overnight delivery mail, postage prepaid:

 

If to CWI:

                   

                    Complete Works, Inc.

                    Attn: General Counsel

                    3540 Toringdon Way

                    Suite 200 #207

                    Charlotte, NC 28277

 

If to Customer, then to the last known address of the Customer. 

 

A Party may change its address for notices by sending a change of address notice using this notice procedure.

 

13.12.      Captions. The descriptive headings of the Sections and subsections of this Agreement are for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation. 

 

13.13.      Amendments. No waiver of any right or remedy and no amendment, change or modification of the terms of this Agreement shall be binding on a Party unless it is in writing and is signed by the Party to be charged.

 

13.14.      Counterparts. This Agreement may be executed in two or more counterparts, each of which will be considered an original but all of which together will constitute one agreement.

 

13.15.      Publicity. Nothing contained in this Agreement shall be interpreted so as to prohibit CWI or Customer to publicize its business relationship with the other Party or the nature of the Services performed for Customer, without the other Party’s prior written consent.

 

13.16.      No Solicitation of Employees. Each Party agrees that during the term of this Agreement, and for a period of one year after the termination or expiration of this Agreement, it will not solicit, without the other Party’s prior written consent, any person employed then by the other Party if such person became known to the soliciting Party through the relationship established pursuant to this Agreement. This prohibition will not apply to job opportunities posted on recruiting websites or in other publications in which one Party seeks to find candidates for open positions (absent direct solicitation and/or recruitment).

13.17.      No Third Party Beneficiaries. Except as provided in Section 10 (Indemnification), this Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties.

13.18.      Entire Agreement. This Agreement, including all Addenda, SOWs, and all schedules, attachments, and/or other documents attached hereto or incorporated by reference, constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement are expressly superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than those expressly stated in this Agreement.

 

ADDENDUM A:

TERMS SPECIFIC TO PRODUCT SALES ONLY

 

This Addendum A: Terms Specific to Product Sales Only (“Addendum A”) applies to any order for software, hardware, or Resold Services (“Products”) made by Customer, for its own internal use and not for resale, pursuant to a quotation issued by CWI (“Quotation”). As used in this Addendum A, the term “Resold Services” refers to services (e.g. Software as a Service), which although ordered from CWI, are procured from and supplied by a third party (i.e., CWI does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum A.

1.     Product Returns and Warranty Assistance.

(a)   Customer acknowledges that CWI is reselling all Products purchased by Customer and that Products are manufactured and/or delivered by a third party.

(b)   To the extent available, CWI shall pass through to Customer the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. Products shall not be accepted for return to CWI without CWI’s written approval. In no event will CWI provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return may be subject to restocking fees.

(c)   Customer acknowledges that the terms and conditions governing the use of Products (e.g., EULAs) shall be solely between Customer and the manufacturer of such Products.

2.     Product Use and Product Warranty Disclaimer. Customer will not use the Products for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. Customer agrees that CWI is not liable for any claim or damage arising from such use.

CWI MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. CWI DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

3.     Shipment and Risk of Loss for Product Sales.  All shipments of Products to Customer will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Customer’s identified point of delivery will be the responsibility of Customer. Risk of loss will pass to Customer upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Customer’s representative at the point of shipment.

4.     Product Security Interest. Customer grants CWI a security interest in the Products detailed in each Quotation, as security for payment in full. Customer authorizes CWI to file and/or record any documents it deems necessary to perfect this security interest.

5.     Permitting Compliance for Product Sales. Customer will obtain all licenses, permits, and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.

6.     Price and Payment. The prices set forth in any Quotation are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Customer’s obligation. Prices quoted are firm for thirty (30) days unless otherwise specified in the Quotation. Payment is due thirty (30) days from the date of the invoice. In the event Customer chooses to finance its purchase using a third party, Customer remains liable for payment to CWI until CWI receives complete payment from such third party. All payments will be made in US currency. Customer will pay interest in the amount of one and one-half percent (1.5%) per month, or the maximum allowed by law whichever is lower, on any outstanding balance owed. Without limiting the foregoing, if Customer’s account remains unpaid for thirty (30) days or more past the due date, CWI reserves the right to suspend all Products until all such overdue amounts (and any applicable interest charges, as specified above) are paid. In addition, Customer agrees to reimburse CWI for all expenses incurred in connection with the collection of amounts payable hereunder, including contingent fees, court costs, and reasonable attorneys' fees.

7.     Export. Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Notwithstanding any sale of Products by CWI, Customer acknowledges that it is not relying on CWI for any advice or counseling on export control requirements. Customer agrees to indemnify, to the fullest extent permitted by law, CWI from and against any fines, penalties and reasonable attorney fees that may arise as a result of Customer’s breach of this Section 7 (Export).

8.     Cancelation. The purchase of Products may be canceled by Customer only upon written approval of CWI and upon terms that indemnify CWI against all losses related to such cancelation.

9.     Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM CWI FOR WARRANTY CLAIMS. IN ADDITION, IN NO EVENT WILL CWI’S LIABILITY TO CUSTOMER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM. CWI WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS ADDENDUM A, EVEN IF CWI HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.

10.  Survival. Those provisions that by their nature should survive termination of this Addendum A, will survive termination. Without limiting the generality of the foregoing statement, Sections 1 (Product Returns and Warranty Assistance), 2 (Product Use and Product Warranty Disclaimer), 6 (Price and Payment), 7 (Export), and 9 (Limitation of Liability) in this Addendum A shall survive any termination of this Agreement.

 

 

ADDENDUM B:
TERMS SPECIFIC TO HOSTING SERVICES ONLY

 

This Addendum B: Terms Specific to Hosting Services Only (“Addendum B”) applies to any order for services consisting of, but not limited to, network, storage, and server devices, software programs, applications network management devices, and other items specified in a Statement of Work (“Hosting Services”). Any such orders shall be subject to the terms and conditions of this Addendum B.

1.     Definitions.

1.1.  “Hosted Data” is Customer Data including all data and information about Customer’s business(es), customers, employees, operations, facilities, products, markets, assets, or finances that CWI obtains, creates, generates, collects, or processes in connection with its performance of Services and is stored in the Hosting Environment.

1.2.  “Hosting Environment” means CWI’s hosting environment for the delivery of Hosting Services.

2.     Information Security.

2.1.  Security Measures. CWI will maintain commercially reasonable security measures that are designed to (a) ensure the security of the Hosted Data stored by CWI in the Hosting Environment; (b) protect against any anticipated threats or hazards to the security or integrity of the Hosted Data stored by CWI in the Hosting Environment; and (c) protect against any unauthorized access to or use of the Hosted Data as stored by CWI in the Hosting Environment. 

2.2.  Notification and Prevention Obligations. Upon becoming aware, CWI shall promptly notify Customer of any actual security breach in its Hosting Environment that may result in the unauthorized access to or disclosure of unencrypted Hosted Data. This notification will state in reasonable detail the Hosted Data at risk. CWI agrees to take all actions reasonably necessary under the circumstances to immediately prevent the continued unauthorized access of such information. CWI further agrees that in the event of a breach of confidentiality or security, it will work in good faith and cooperate with Customer to address the breach. CWI shall not be responsible or liable for any security breach caused by Customer.

2.3.  Audits by CWI. CWI will conduct an annual audit of its security measures. Upon Customer’s written request, CWI shall provide a copy of its most recent audit report. The report is to be treated as Confidential Information under this Agreement whether or not marked or otherwise identified as “Confidential” and remains the property of CWI.

3.     Customer Responsibilities

3.1.  Acceptable Use. Customer is responsible for all acts and omissions of its Users in connection with receipt or use of the Services. Customer agrees, and will ensure its Users agree, to act responsibly and not use the CWI Hosting Services for any illegal or unauthorized purpose including, but not limited to, hacking, phishing, spamming, identity theft, financial fraud, e-mail spoofing, virus distribution, network attacks, pirating software, harassment, using copyrighted text, sharing illegal software, and unauthorized use of images. CWI has the right to investigate potential violations of this Section 3 (Customer Responsibilities). If CWI determines that a breach has occurred, then CWI may, in its sole discretion: (a) restrict Customer’s and Users’ access to the Hosting Services; (b) remove or require removal of any offending Content; (c) terminate this Agreement for cause; and/or (d) exercise other rights and remedies, at law or in equity. Except in an emergency or as may otherwise be required by law, before undertaking the actions in this Section 3 (Customer Responsibilities), CWI will attempt to notify Customer by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Customer will promptly notify CWI of any event or circumstance related to this Agreement, Customer’s or any User’s use of the Hosting Services, or Content of which Customer becomes aware, that could lead to a claim or demand against CWI, and Customer will provide all relevant information relating to such event or circumstance to CWI at CWI’s request.  CWI agrees to allow Customer complete and unrestricted access at all times to Customer’s software applications, devices, equipment, hardware, and all Services-related license files so that Customer can audit its Users’ compliance with the terms of this Agreement.

3.2.  Access. Customer agrees not to access the Hosting Environment by any means other than through the interface that is provided by CWI for use in accessing the Hosting Environment.

3.3.  Capacity Planning. Customer is solely responsible for determining whether the Hosting Environment and related Content meet Customer’s capacity, performance, or scalability needs. Customer is responsible for planning for and requesting changes to the Hosting Environment and services, including any additional capacity required to support anticipated peaks in demand that may significantly increase website hits, transaction volumes, or otherwise increase system resource utilization.

4.     Indemnification. Subject to the terms of Section 10 (INDEMNIFICATION) of the Agreement, Customer will indemnify, defend and hold harmless CWI and its officers, directors, shareholders, employees, agents, successors and assigns from any and all liabilities, damages, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claim, suit or proceeding (threatened or otherwise) made or brought by a third party against CWI or its officers, directors, shareholders, employees, agents, successors and assigns based upon (a) any breach by Customer of its obligations under Section 2.1 (Security Measures) and Section 3.1 (Acceptable Use) of this Addendum B and (f) any claim that CWI’s possession, storage, or transmission of the Content or possession or use of the Customer Components, infringes on, violates, or misappropriates any patent, copyright, trademark, service mark, trade secret or other intellectual property or proprietary rights of such third party.

5.     Survival. Those provisions that by their nature should survive termination of this Addendum B, will survive termination. Without limiting the generality of the foregoing statement, Sections 3.1 (Acceptable Use) and 4 (Indemnification) in this Addendum B shall survive any termination of this Agreement.