General Terms & Conditions

GENERAL TERMS AND CONDITIONS v4 2020.02.20

GENERAL TERMS AND CONDITIONS of Managed Services Agreement

PLEASE READ CAREFULLY. These Terms and Conditions (“Terms”) govern the Services and/or Products provided to the undersigned User/Licensee by Decypher Technologies, LLC (“Company”). Any changes to these Terms will be effective immediately upon the Company sending revised Terms to User.

USER USE OF COMPANY’S SERVICES CONSTITUTES USER ACCEPTANCE OF THESE TERMS.

  1. Definitions

As used in this Agreement, the following definitions shall apply, unless the context otherwise requires:

(A) “Applicable Rate” shall mean the rate (Hourly or Overtime Rate) specified for the Services hereinafter defined below or in any Agreement, Schedule, Exhibit, Addenda or Amendment attached to this or any subsequent Agreement between the parties.

(B) “A-Tech – Senior Technician Rate” shall mean any DECYPHER TECHNOLOGIES team member designed to handle technologies that require a higher degree of specialization than most other network administration tasks including but not limited to Microsoft Server, Cisco IOS, Unix, Linux etc.

(C) “Break-Fix Service” shall mean any service not covered or defined as such in the then-current DECYPHER TECHNOLOGIES Services Agreements, under any attached Schedules, Exhibits, Addenda, Amendment and/or Agreement subsequent hereto (e.g.: DECYPHER TECHNOLOGIES Computer Services Agreement Schedules B, C & D; DECYPHER TECHNOLOGIES Voice Services Agreement Schedule B; etc.) or a mutually agreed to fixed cost project.

(D) “Company” and/or “Licensor” shall refer to Decypher Technologies, LLC, or, “DECYPHER TECHNOLOGIES”.

(E) “Computer System” shall include, but is not limited to, all software, servers, computer workstations and other computer equipment, switches, circuits, printers, scanners, and other related computer equipment owned/leased/licensed by User.

(F) “Effective Date” shall mean the first date on which User and Company agreed that Company would provide Services to the User. The Effective Date applies all of these General Terms and Conditions throughout the relationship between Company and User and is not limited to the Effective Dates of each Schedule, Addendum, Amendment and/or Agreement subsequent hereto.

(G) “Help Desk Support” shall mean any and all work done on behalf of User from a remote location with or without User or point of contact support.

(H) “Normal Business Hours” shall mean DECYPHER TECHNOLOGIES’ regular business hours Monday through Friday (exclusive of holidays as set forth under the definitions of “Overtime Hours” below) between the hours of 8:00 a.m. and 5:00 p.m. Mountain Standard Time (MST).

(I) “Overtime Hours” shall mean DECYPHER TECHNOLOGIES’ overtime hours Monday through Friday, between the hours of 5:01 p.m. until 7:59 a.m. Mountain Standard Time (MST), all day Saturday, Sunday and the following holidays, New Years, Memorial Day, Labor Day, Independence Day, Thanksgiving Day and the Friday following, and Christmas Day.

(J) “Services” shall mean any services provided by Company to User pursuant to the terms of this Agreement, including any and all travel time to and from the User.

(K) “Telephone System” shall mean all software, servers, telephone workstations and other telephone equipment, switches, circuits and other related Telephone equipment owned/leased/licensed by User.

(L) “User” and/or “Licensee” shall refer to the User and/or Licensee (Company/Licensee’s opposite party) of these General Terms and Conditions, engaging Company to provide services described hereunder or in any subsequent Agreements, Schedules, Exhibits, Addenda or Amendments between these parties.

  1. Confidentiality

(A) Confidential Information

(1) Both parties hereto understand that during the term of this Agreement, each party may have access to unpublished, proprietary and otherwise confidential information (hereinafter “Confidential Information”), related to actual or anticipated business and/or business strategies, both of a technical and non-technical nature, relating to each other’s technology or the implementation or exploitation thereof, including, but not limited to, information pertaining to strategies, positions, clients, partners, staff, size, and data, tapes, software, applications, supplier lists, customer lists, customer data, marketing information, documentation, records and all copies of the foregoing of any kind and any materials bearing or containing any of the foregoing. User owns all right, title and interest in and to all of User’s Confidential Information. At all times, both during User’s use of Company’s Services and after the cessation of said Services, whether the cessation is voluntary or involuntary, for any reason or no reason, or by disability, both parties will keep in strictest confidence and trust all of the other party’s Confidential Information and anything related thereto, and will not disclose or use or permit the use or disclosure of any such information or rights pertaining to Confidential Information, and anything related thereto, without the other party’s prior written consent, except as may be necessary in the ordinary course of Company performing its Services for User, or as required by applicable law.

(2) The parties recognize that the parties may have exchanged and in the future likely will exchange with third parties, their Confidential Information subject to a duty on both parties and third parties’ parts to maintain the confidentiality of such information and to use it only for certain limited purposes consistent with the parties’ agreements with such third parties.

(3) Upon the termination or expiration of this Agreement or upon User’s request, Company shall promptly return or destroy all of User’s Confidential Information that Company has in its possession or under its control and if requested, certify in writing to User that all of User’s Confidential Information has been returned or destroyed, as applicable.

(4) Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes publicly available other than through a breach of this Agreement by Company, its employees, agents or representatives, (ii) Company can demonstrate is known to or is in the possession of Company or any of its employees, agents or representatives at the time of disclosure, (iii) after disclosure becomes known to or comes into possession of Company or any of its employees, agents or representatives (other than as a result of breach of this Agreement) from a third party that Company, or such employee, agent or representative reasonably believes after reasonable investigation is not under any obligation of confidentiality with respect to, and is lawfully in the possession of, such information; or, (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory or professional standards; provided that prior to such disclosure, User is given reasonable advance notice of such order and an opportunity to object to such disclosure.

(B) Remedy

(1) Without limiting the remedies available to Company, which will include money damages, User acknowledges that User breach of this Agreement will result in material, irreparable injury to Company for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely, and that, in the event of such a breach or threat thereof, Company will be entitled to obtain a Temporary Restraining Order and/or Preliminary Injunction (without posting any bond or other security) restraining User from engaging in activities prohibited herein or such other relief as may be required to enforce any of the provisions of this Agreement.

(2) Without limiting the remedies available to User, which may include money damages, Company acknowledges that its breach of this section (§ 3) may result in material, irreparable injury to User for which there is no adequate remedy at law, that it may not be possible to measure damages for such injuries precisely, and that, in the event of such a breach or threat thereof, User will be entitled to obtain a Temporary Restraining Order and/or Preliminary Injunction (without posting any bond or other security)restraining Company from engaging in activities prohibited herein or such other relief as may be required to enforce any of the provisions of this Agreement.

(C) Compliance with Subpoena

(1) Notwithstanding the terms and conditions contained in §§ III(A) and III(B) above, the parties may comply with any subpoena, governmental request or similar order related to Confidential information, provided that the complying party notifies the other party promptly upon receipt thereof, unless such notice is prohibited by law. The targeted party shall pay complying party’s reasonable expenses for such compliance.

(2) The parties recognize that they may have received and in the future likely will receive from third parties their Confidential Information, subject to a request or similar order related to Company Confidential Information, provided that the complying party notifies the other party promptly upon receipt thereof, unless such notice is prohibited by law, so that the other party may inform the targeted third party if required and permissible. The complying party’s reasonable expenses for such compliance shall be paid by the other party, whose third party is the target of said information request.

(D) Forfeiture/Donation of Property

In the event that (i) User donates or bequeaths a Computer System and/or other equipment(s) or (ii) User fails to receive or take delivery of a Computer System and/or other equipment(s) within 30 days of, Company will render the Computer System and/or other equipment(s) as abandoned and as a forfeiture of property.  Company will not pay User for the property being forfeited. Company will reset system to original factory settings.  No Confidential Information so set forth in Section A will be used for purposes of solicitation, advertising, unsolicited e-mail, or spamming, nor will any Confidential or Personal Information be stored for any reason whatsoever.  Those Computer Systems and/or other equipment(s) that are donated by Company are donated without Warranty.  Company will not be responsible for any additional gratis services or support.

III.             Delivery of Property and Work Product

In the event that the Company ceases to provide Services for User, for any reason, the parties will deliver to each other all, but not limited to, devices, records, sketches, reports, memoranda, notes, proposals, lists, correspondence, equipment, documents, photographs, photographs, negatives, undeveloped film, drawings, specifications, tape recordings or other electronic recordings, programs, data, software, hardware and other materials or property of any nature belonging to the other party and/or the other party’s clients and/or customers, and will not take with or retain, or allow a third party to take or retain, any of the foregoing or any reproduction thereof.

  1. Duties of Company

(A) During the term hereof, Company shall perform the Services specified on the attached Schedules, as applicable. Company’s employees shall perform all Services; provided, however, that Company is hereby authorized, as approved by User with respect to the specific scope of work to be performed and subject to their execution of appropriate confidentiality agreements with User, to engage qualified consultants, agents or independent contractors to perform the Services on behalf of Company. Company shall be responsible for the supervision and performance of such consultants, agent or independent contractors.

(B) At Company’s reasonable discretion, and to the extent practicable, Company may perform Services via remote access to, per the applicable Schedules below (in any Agreement, Schedule, Exhibit, Addenda or Amendment attached to this or any subsequent Agreement between the parties), User’s System(s).

  1. Duties of User

(A) During the term of this Agreement, User shall provide Company with any and all available resources, including but not limited to information, documentation, technical assistance and access to the applicable systems (including via remote access) as Company may reasonably require in performing its duties hereunder.

(1) All of User’s servers must be covered by the manufacturers’ warranties for parts replacement. Servers whether or not covered by the manufacturers’ warranties, will be serviced at the applicable Rate (as set forth on Company’s then-current Computer Services Agreement).

(2) User hereby agrees to maintain in full force and affect a license for any and all software serviced by Company for the Term of this Agreement. If, for any reason, User does not maintain a license for software, then Company may, in its sole and absolute discretion, cease providing any and all Services to User.

(B) Company shall be relieved of its duties hereunder to the extent such failure is caused by User’s failure to comply with any of the foregoing provisions of this Section (§ VI).

  1. Fees

(A) In consideration of Company’s obligations pursuant to this Agreement, User shall pay Company the rates and fees set forth in this Agreement or in any subsequent Agreement, Schedule, Exhibit, Addenda or Amendment for the Services rendered. Such rates and fees shall be adjusted annually in conjunction with the Company’s increased costs of doing business. The Company may also adjust its rates and fees throughout the Term in the event of a change to the User’s network infrastructure (which change results in the dedication by the Company of greater resources and time). In addition, User shall pay all taxes based on or in any way measured by this Agreement or any Services related hereto, excluding taxes based on Company’s net income. If User challenges the applicability of any such taxes, it shall pay the same to Company and User may thereafter challenge such tax and seek refund. All labor costs quoted are strictly an estimate.  The labor estimates are subject to change based on unforeseen circumstances.  Any work not described within the scope of the services will be priced and performed separately.  In such event, Company will discuss any variations with the User at the time they occur and obtain consent to proceed with the additional work.

(B) Late Fees  All sums due Company under this Agreement or in any subsequent Agreement, Schedule, Exhibit, Addenda or Amendment, if unpaid within thirty (30) days of the date due, shall bear interest from such date until paid, at a rate equal 1.5% per month, or the maximum rate permitted by law, on the entire overdue amount for each calendar month or a fraction thereof that any payment to the Company is in arrears; provided User has received three (10) business days notice of such nonpayment.

(C) Disputed Amounts If at any time User disputes in good faith any portion of an invoice from Company, User must pay all monies except for the good faith amount disputed; but such withheld good faith amounts are subject to a Late Fee of 1.5% per month unless the underlying amounts are waived. If User withholds any amount more than the amount disputed in good faith, Company may interpret such act by User as an Anticipatory Breach and may take any and all actions to obtain remedies available under this Agreement, at law or in equity. If in fact a disputed amount is proven to be in error, Company will issue a credit to User before or on the next monthly invoice sent to User.

(E) Refund of Fees In the event of a termination of this Agreement for reasons other than User’s default, the User shall be entitled to a refund of any unearned portion of such Fees theretofore paid.

VII.            Limited Warranty.

Company represents and warrants to User as follows:

(A) Intellectual property warranties:

  • At the time the Services are rendered, it will have all the rights, authorizations and licenses necessary to provide the Services;
  • To the best of its knowledge at the time the Services are rendered, Company’s use of third party software and hardware to perform the Services will not infringe the intellectual property rights of any third party; and,
  • Upon full payment, Company will transfer to User the rights to third party software and hardware purchased by Company for installation on User’s system.

(B) Sale of Products In connection with the sale, if any, of software or other products (hereinafter “Products”) by the Company to User, the Company agrees, to the extent it has the authority, to assign to User any manufacturer’s warranties applicable to the Products. IN CONNECTION WITH ANY SUCH PRODUCT(S) SOLD BY THE COMPANY TO USER, THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Upon termination of this Agreement by either party, the Company shall have no further liability or obligation to User with respect to sale of Products.

(C) In fulfilling its obligations to provide the Services during the term of this Agreement, Company will, to the extent commercially reasonable, keep all Company-supplied software and hardware resources used by Company to provide the Services (excluding third party software and hardware resources installed on User’s system) properly maintained and current relative to such industry products and standards and the software and hardware maintenance recommendations of the respective vendors.

(D) The Services will be rendered by Company and by Company’s employees, agents, and contractors, in a professional and competent manner in accordance with commercially accepted industry standards.

(E) In performing the Services hereunder, Company will use commercially reasonable efforts to minimize the risk of undue interruption of the normal business operations of User.

VIII.           Negation of Warranty

(A) The express warranties set forth in § VIII above shall not apply to the extent the Services provided by Company are delayed or fail to comply as a result of any of the following: (i) unauthorized actions, delay or inaction of User, User personnel or third parties (not including Company’s employees, agents, representatives or contractors); (ii) failure of software and equipment not administered by Company; (iii) incompatibility of software or hardware installed by User or third parties (not including Company’s employees, agents, representatives or contractors) after the effective date of this Agreement; (iv) modification by User or third parties (not including Company’s employees, agents, representatives or contractors) of any work product provided by Company to User, unless the same has been authorized by Company; (v) damage or malfunction of hardware not caused by Company’s employees, agents, or contractors; (vi) acts of God, flood, fire, or other casualty, vandalism, war, the public enemy, or any and all other events of force majeure or failure of common carriers, or any other event or failure out of the Company’s reasonable control; or, (vii) failure of User to perform any of its duties set forth in § VI of this Agreement.

(B) EXCEPT TO THE EXTENT SET FORTH ABOVE IN § VIII: (i) COMPANY DOES NOT WARRANT THE SERVICES PERFORMED HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES; (ii) COMPANY DOES NOT WARRANT ANY THIRD PARTY SOFTWARE PURCHASED FOR OR BY USER IN CONNECTION WITH THIS AGREEMENT, OR THAT SUCH SOFTWARE WILL MEET OR CONTINUE TO MEET THE MANUFACTURER’S SPECIFICATIONS; (iii) COMPANY DOES NOT WARRANT THAT ANY OR ALL ERRORS, MALFUNCTIONS AND DEFECTS CAN OR WILL BE CORRECTED; (iv) THE WARRANTY IS EXCLUSIVE AND THE COMPANY DOES NOT MAKE, AND USER SPECIFICALLY WAIVES, ALL WARRANTIES, EXPRESSED OR IMPLIED, EXPRESSED OR IMPLIED WITH RESPECT TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT AND ALL CORRECTIONS, PROGRAMS, INFORMATION, OFFICE SPACE, EQUIPMENT, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OF THE COMPUTER EQUIPMENT, SOFTWARE, INFORMATIONAL CONTENT, OR FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR ANY OTHER USE; AND, (v) THERE IS NO WARRANTY AGAINST INTERFERENCE WITH USER’S ENJOYMENT OF THE SOFTWARE, OR ANY OF THE COMPUTER OR VOICE SYSTEMS, OR ANY OF THE EQUIPMENT OR AGAINST THE RIGHTS, INCLUDING BUT NOT LIMITED TO THE INTELLECTUAL PROPERTY RIGHTS, OF ANOTHER.

  1. Non-Solicitation

(A) User agrees that during the period Company is providing Services to User hereunder, and for a period of eighteen (18) months thereafter, User will not, without Company’s prior written consent, directly or indirectly, solicit, employ, retain the services of, interfere with or attempt to entice away from Company or any affiliate of Company, any person who was an employee, independent consultant, contractor or agent of Company at any time during which Company was providing Services to User.

(B) User understands that employees, consultants and independent contractors of the Company, including managers and field technicians (hereinafter “Company Hires”), have signed agreements with the Company which include covenants that such Company Hires shall not accept employment or engagement with any client of the Company. It is also understood that such agreements are enforceable under the laws of the State of Colorado and that the Company has the right to take legal action against any signatory to an arrangement whereby Company Hire accepts employment or engagement with User without the prior written consent of the Company or in violation of the covenants contained in the Company’s proprietary agreements with the Company Hires.

  1. Insurance

(A) Both parties assert that they are properly bonded & all employees are insured at a minimum to meet Colorado Law; or, in the situation where Company employees, agents or assigns will be doing work for the User in a jurisdiction other than the State of Colorado, User asserts that it is properly insured at a minimum to meet the qualifications of that jurisdiction’s insurance laws.

  1. General

(A) No Waiver The failure of either party to exercise in any respect any right provided for herein shall not be or deemed a waiver of any right hereunder. No waiver of any condition in this Agreement shall be implied by any omission of Company to enforce any remedy on account of the violation of any such condition and no receipt of money by Company after the termination, in any way, of the Term hereunder or after the giving of any notice shall reinstate, continue or extend the Term hereof or affect any notice given to User. No modification, waiver or amendment to this License Agreement shall be binding unless such modification, waiver or amendment is in writing and signed by both parties.

(B) Assignment This Agreement and any Schedules, Exhibits, Addenda, Amendments or subsequent Agreements and the rights and duties hereunder shall not be assignable by the parties hereto except upon the prior written consent of the other which consent shall not be unreasonably withheld; provided however, for the purposes of this provision, a sale of all or substantially all of the Company’s assets to a third party, the sale of fifty percent (50%) or more of the Company’s interest to a third party, or the merger, consolidation or other business combination of the Company with a third party shall not require consent. User may assign its rights and duties hereunder to any current or future parent, affiliate or subsidiary having a net worth equal to or greater than that of User, as evidenced by then current certified financial statements provided that User shall give Company written Notice ninety (90) days prior, such financials and any other information reasonably requested by Company.

(C) Supervision User acknowledges that it does not have any authority or power to supervise or otherwise direct or regulate the employees or operations of the Company.

(D) Miscellaneous Submission of this Agreement for examination shall not bind Company in any manner and no obligation on Company shall arise until this Agreement is signed and delivered by both Company and User.