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Thank you for selecting the services offered by ClearPointe, Inc. (referred to below as “ClearPointe,” “we,” “our” or “us”). “You” or “your” refers to the person or entity that is our customer of record.
Please review these Terms of Service (these “Terms”) thoroughly. By entering into a Customer Order Form or SOW referencing these Terms, you have created a legal agreement that includes the elements described in Section 1.1 below (this “Agreement”) governing your use of ClearPointe’s information systems management services and professional services (the “Services”).
If you or the entity that is customer of record do not agree to this Agreement, then do not indicate acceptance.
1. STRUCTURE OF AGREEMENT.
1.1 Components of this Agreement. This Agreement includes:
a. One or more Customer Order Forms signed by ClearPointe and you identifying the specific Services you are purchasing, the price for the Services and the date these Services will commence (“Effective Date”) which may be modified from time to time (and any changes will be effective upon your electronic approval of our proposed modifications);
b. The ClearPointe Services Catalog available on this website at https://clearpointe.cloud/servicescatalog (the “Services Catalog”) detailing the Services and specific terms and conditions beyond these Terms;
c. Any Statement of Work (“SOW”) signed by ClearPointe and you describing implementation or consulting services; and
d. Any terms provided separately to you regarding the Services, including ordering, activation, pricing and payment terms, as applicable.
1.2 Relationship of the Parties. We are an independent contractor and nothing in this Agreement or related to our performance of the Services will be construed to create a joint venture relationship between you and us, or an employee relationship between you and any ClearPointe employee or subcontractor. We may, in our discretion, utilize subcontractors to provide certain aspects of the Services.
2.1 Limited Services. Except for Supplemental Services, the Services are limited to those specifically described in the Services Catalog as selected and purchased pursuant to a Customer Order Form or SOW.
2.2 Supplemental Services. We may provide you with certain limited services and equipment needed on a “one-off” or emergency basis (“Supplemental Services”) if these services are not included within the scope of the Services. Before providing Supplemental Services, we shall obtain your approval and, unless otherwise expressly agreed, you shall pay our published rates for Supplemental Services. We shall use commercially reasonable efforts to provide requested Supplemental Services; provided, however, that we have no obligation to determine the need for Supplemental Services.
3. PAYMENT TERMS.
3.1 Invoicing. We send invoices for the Services on the first (1st) day of the month before performing the Services and you shall pay the invoiced amounts by the fifteenth (15th) day that month. Our invoices also include any Supplemental Services provided in the previous month. For project work, you shall comply with the payment requirements in the applicable SOW. Once paid, all payments are non-refundable for any reason, including your cancellation of the Services. For all amounts not paid when due, you shall pay an additional charge equal to one and one-half percent (1.5%) of the amount due per month or partial month until paid; provided that these additional charges will not apply to unpaid amounts that you are disputing in good faith and have provided written notice to us before the due date of the disputed invoice. The parties shall use their best efforts to resolve the dispute promptly in accordance with Section 13. If it is ultimately determined that you have overpaid, we shall credit your next monthly invoice.
3.2 Customer Delays. If we are unable to commence Services on a given Effective Date because of any material failure on your part (including your failure to provide resources in a timely manner), you shall nonetheless be responsible for the fees in a Customer Order Form beginning on the given Effective Date. Once work has started, if completion of a project is delayed or interrupted by you for more than thirty (30) days, we reserve the right to send a final invoice and receive payment for balance of the project.
3.3 Expenses. You shall reimburse us for actual and reasonable expenses (including travel, meals and mileage) incurred in performing the Services. A summary of expenses sorted by major category will be included in the invoice for the associated Services.
3.4 Taxes. You shall pay all applicable transaction taxes, including sales and use taxes, value added taxes, and other transactional charges such as duties, customs, tariffs, imposts and government imposed surcharges (“Transaction Taxes”). Transaction Taxes are not included in our pricing. If we are required to collect Transaction Taxes from you and remit them to a taxing authority, we shall separately state the Transaction Taxes on an invoice. ClearPointe and you are responsible for their respective income taxes or taxes based on gross revenues or gross receipts.
3.5 Failure to Pay; Remedies. You acknowledge that your failure to timely pay any of the fees payable is a material breach of this Agreement for which we may, in addition to pursuing all other remedies, suspend Services. If the Services are restored after we suspend them due to your failure to pay, you shall pay a reactivation fee based on the man-hours spent by us validating your components and restoring the Services.
4.1 Services Warranty. We warrant that we shall perform the Services in a professional and workmanlike manner utilizing properly trained personnel. For any breach of this warranty, you must provide a written claim within ten (10) business days after provision of the applicable Services specifying in reasonable detail the nonconformance, and we shall exercise commercially reasonable efforts to re-perform the identified nonconforming Services. If we conclude that re-performance of these non-conforming Services is impracticable, then we shall refund the fees paid by you to us allocable to those nonconforming Services.
4.2 Third Party Products. We are not responsible for the performance of any hardware, software or other materials provided by third parties. Product warranties for third party products, if any, are provided by the third parties and not by us.
5.1 Exclusive Remedy. The express remedies in Section 4 constitute your exclusive remedies, and our sole obligation and liability, for any claim (a) the Services do not conform to specifications or are otherwise defective; or (b) that any Services were performed improperly.
5.2 No Implied Warranties. EXCEPT FOR THE WARRANTIES IN SECTION 4, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO YOU, ANY SERVICES, SUPPLEMENTAL SERVICES OR DELIVERABLES ARE PROVIDED “AS IS,” AND NEITHER US NOR OUR SUPPLIERS MAKES ANY ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR STATUTORY, AS TO ANY SERVICES, SUPPLEMENTAL SERVICES OR DELIVERABLES, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL IMPLIED WARRANTIES INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
5.3 Specific Disclaimers. NEITHER US NOR OUR SUPPLIERS WARRANT THAT ANY SERVICES, SUPPLEMENTAL SERVICES OR DELIVERABLES WILL MEET ANY REQUIREMENTS NOT SPECIFIED IN THIS AGREEMENT, THAT ANY DELIVERABLE WILL OPERATE IN THE COMBINATIONS THAT YOU MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
5.4 No Additional Warranties. Except in accordance with Section 14, no statement by any ClearPointe employee or agent, verbally or in writing, will serve to create any warranty or obligation or to otherwise modify this Agreement in any way whatsoever.
6. LIMITATION OF LIABILITY.
6.1 Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, SAVINGS, REVENUE OR USE, DAMAGED OR LOST FILES OR DATA OR BUSINESS INTERRUPTION) IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. WE WILL NOT BE LIABLE FOR ANY DAMAGES FOR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES OR FOR AGGREGATE LIABILITY RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EXCEEDING THE AMOUNT OF FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE ONE-YEAR (1) PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES BASED ON ACTIONS OR OCCURRENCES THAT OCCURRED MORE THAN ONE (1) YEAR BEFORE THE OTHER PARTY PROVIDES NOTICE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY IN THIS AGREEMENT AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES.
6.2 Basis of the Bargain. YOU ACKNOWLEDGE THAT OUR FEES REFLECT THE OVERALL ALLOCATION OF RISK BETWEEN US AND YOU, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU AND A MODIFICATION OF THESE PROVISIONS WOULD SUBSTANTIALLY AFFECT OUR FEES. IN CONSIDERATION OF THESE FEES, YOU AGREE TO THIS ALLOCATION OF RISK AND HEREBY WAIVE ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.
7. CONFIDENTIAL INFORMATION.
7.1 Definitions. In the course of performing under this Agreement, either party (the “Disclosing Party”) may provide Confidential Information to the other party (the “Recipient”). For purposes of this Agreement, “Confidential Information” means written, confidential and proprietary information of a Disclosing Party that is not generally available to the public. All Disclosing Party Confidential Information will remain the property of the Disclosing Party. Software, documentation and other materials or tools used by us to perform the Services, including ClearPointe Intellectual Property will be considered our Confidential Information.
7.2 Obligations. The Recipient acknowledges that Confidential Information is entrusted to it in confidence, and the reputation and success of the Disclosing Party depends on maintaining and safeguarding the secrecy of its Confidential Information. The Recipient, during and after termination of this Agreement: (a) shall use the same level of care to protect the confidentiality of the Confidential Information as it does to protect its own Confidential Information, but not less than a reasonable degree of care; (b) shall not use any Confidential Information except for the purpose of fulfilling its obligations or exercising its rights under this Agreement; (c) shall not, or permit others to, disclose, duplicate, transfer, sell, lease or otherwise make any of the Confidential Information available to others without the Disclosing Party’s prior written consent; and (d) shall not remove, or permit to be removed, any notice indicating the confidential nature of the Confidential Information. The Recipient shall return all Confidential Information at the earlier of the termination of this Agreement or the Disclosing Party’s request, except that the Recipient may retain a limited number of electronic backup copies of the Confidential Information as are automatically created and retained by its standard backup processes and systems. The Recipient shall comply with its nondisclosure obligations under this Section 7 with regard to these copies and shall destroy them in accordance with its normal destruction processes.
7.3 Exceptions. The Recipient is not obligated under Section 7.2 for Confidential Information that (a) is generally known, or readily ascertainable by proper means, by the public other than through Recipient’s breach of this Agreement; (b) was known by the Recipient on a nonconfidential basis prior to receipt under this Agreement as evidenced by the Recipient’s written records; or (c) is rightly received by the Recipient from a third party not subject to any nondisclosure obligations with respect to the Confidential Information.
7.4 Subpoena or Order. If the Recipient receives a request to disclose all or any part of the Confidential Information by a subpoena or order issued by a court or other governmental agency, the Recipient shall: (a) immediately notify the Disclosing Party of the existence, terms and circumstances surrounding the request; (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the request; and (c) if disclosure is required, upon the Disclosing Party’s request, cooperate with the Disclosing Party at the Disclosing Party’s expense to obtain an order or other reliable assurance that confidential treatment will be accorded to any portion of Confidential Information as the Disclosing Party may designate.
8. PROPRIETARY RIGHTS. You acknowledge that we may use proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how or other intellectual property owned by us or our licensors, and we may also create additional intellectual property in the performance of the Services (all of the foregoing, the “ClearPointe Intellectual Property”). You agree that all proprietary rights to the ClearPointe Intellectual Property, including patent, copyright, trademark and trade secret rights, are our sole and exclusive property, free from any claim or retention of rights on your part, and you hereby assign to us any rights you may have in any of the foregoing.
9. YOUR RESPONSIBILITIES.
9.1 Provision of Materials and Services to ClearPointe. You shall timely furnish, at your own expense, all personnel and all necessary computer hardware, software and related materials for us to perform the Services. You shall provide a suitable and safe working environment for us to perform the Services, including the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of necessary equipment. You shall provide our personnel with free access to your equipment and premises to perform the Services, provided that we comply with your security regulations. You shall provide us with access to all information requested by us that is necessary to perform the Services. You shall also provide access as needed to third-party providers of maintenance services. We may identify additional items to be purchased by you and changes in your systems for us to meet your requirements. You shall work in good faith with us to implement any identified purchases or changes. You shall be responsible for the quality, completeness and workmanship of any item or service furnished by you and shall ensure the materials provided to us do not infringe or violate any third party’s rights. You shall maintain adequate backup for all data and other items furnished to us.
9.2 Timeliness. Any timetable in a SOW is dependent on our timely receipt of all necessary items and authorizations to be supplied by you. Any completion date will be deferred for a period equal to the time lost by reason of a delay in delivery of these items by you.
9.3 Software Installation or Replication. If we are required to install or replicate your software as part of the Services, you shall independently verify that all software is properly licensed. Your act of providing any software to us will be deemed an affirmative acknowledgment to us that you have a valid license that permits us to perform the Services. Unless expressly agreed to in a Customer Order Form, you shall monitor your equipment for the installation of unlicensed software. You shall indemnify us against all damages and expenses we may incur (including reasonable attorneys’ fees and disbursements) related to you providing infringing materials to us or your breach of this Section 9.3.
9.4 No High Risk Use. The products and services provided by us are not fault-tolerant and are neither designed nor intended for use in a situation where the failure could lead to death or serious bodily injury of any person or to severe physical or environmental damage (“High Risk Use”). High Risk Use includes aircraft or other modes of human mass transportation, nuclear or chemical facilities and Class III medical devices under the U.S. Food, Drug and Cosmetic Act. You are not licensed to use the Services in, or in conjunction with, High Risk Use.
10. CLEARPOINTE’S INTERNAL NETWORK SECURITY POLICY. We monitor the availability and performance of our internal firewalls and web caching sub-systems. This process involves monitoring for intrusion attempts and potential security breaches. In order to minimize a possible compromise of security, all applications exposed to the Internet on our servers will be updated with available security hotfixes and best practices. As appropriate, we may proactively evaluate, investigate and report security related incidents to the appropriate authorities and to our management. We shall monitor and proactively manage the anti-virus protection of our servers and applications using an industry leading anti-virus software system. This service includes installation of signature updates and application upgrades and follow-up on alerts forwarded by the anti-virus sub system.
11. NON-SOLICITATION. During this Agreement and for an additional twelve (12) months, neither party may, without the written consent of the other party, directly or indirectly through another party, (a) solicit for employment or engagement as an independent contractor; or (b) employ, or engage as an independent contractor, any person who is or was an employee or contractor of the other party during the twelve (12) month period prior to the date of that action.
12. PRESS RELEASES. You agree that during this Agreement we may publicly refer to you, verbally and in writing, as a client of ClearPointe. Any other reference to you by us will be made only in accordance with this Section. The parties shall consult with each other in preparing any press release, public announcement, case study or other form of release of information concerning this Agreement or the Services (a “Press Release”). Neither party shall issue or cause the publication of a Press Release without the prior written consent of the other party; except that nothing will prohibit either party from issuing or causing publication of a Press Release to the extent required by applicable law or the rules of any stock exchange applicable to a party or its affiliates, in which case the party required to make a disclosure shall, if practicable under the circumstances, provide the other party a reasonable time to comment on a Press Release in advance of its issuance.
13. DISPUTE RESOLUTION. The parties shall in good faith attempt to resolve any dispute within a reasonable period among themselves. If this attempt fails, the dispute will be settled by arbitration before a single arbitrator in Little Rock, Arkansas, administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award may be entered in any court having jurisdiction. Neither party will be obligated under this Section for breaches of Sections 7 or 11 or for any other breach as to which injunctive relief is sought. If legal action is taken by either party to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing party, including reasonable attorneys’ fees and court costs of litigation, shall be paid by the other party.
14. CHANGES TO THIS AGREEMENT. We may change this Agreement from time to time and the changes will be effective upon reasonable notice to you, which may include email or other electronic notification. We may also change or discontinue the Services, in whole or in part, including pricing, technical support options and other product-related policies. Your continued use of the Services after we notify you of any changes indicates your agreement to the changes.
15.1 Right to Terminate. We may immediately and without notice suspend or permanently discontinue the Services if you fail to comply with this Agreement. Any termination of this Agreement will not affect our rights to any payment. Other requirements regarding termination may apply based on the specific ordering terms for the Services.
15.2 Effect of Termination. Sections 1, 3, 5, 6, 7, 8, 9.3, 11, 13 and 15, will survive any termination of this Agreement.
16. FORCE MAJEURE. Except with regard to any obligation to pay money, neither party will be held responsible for any delay or failure in performance caused by fire, flood, embargo, strike, labor dispute, delay or failure of any subcontract, telecommunications failure or delay, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy or any act or omission or other cause beyond a party’s control. If any of these events occur, the time to perform an affected obligation will be extended by the length of time the event continues.
17. GENERAL. This Agreement constitutes the entire agreement between you and us and replaces all prior understandings, communications and agreements, verbal or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in Section 14. If any court rules that any part of this Agreement is invalid, that provision will be removed without affecting the remainder of this Agreement. The remaining terms will be valid and enforceable. This Agreement is governed by the laws of the State of Arkansas without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement is an agreement between you and us and confers no rights upon either of ClearPointe’s or your employees, agents, contractors or customers, or upon any other person or entity. The word “including” is not intended to be exclusive and means “including, but not limited to.” The word “or” is not intended to be exclusive unless the context clearly requires otherwise. Neither party shall assign or transfer, by merger, operation of law or otherwise, this Agreement or any right or duty under this Agreement without prior written consent from the other party, except that we may transfer this Agreement to a successor entity if we are acquired, whether by equity or asset purchase, merger, corporate restructuring or reorganization or the like. Any purported assignment in violation of this Section is void.