TERMS AND CONDITIONS
This Coretelligent Services End User Agreement (“EUA”) governs the use of Coretelligent services (the “Services”) by end users who have purchased the Services pursuant to a valid and enforceable agreement between the end user (the “End User”) and an authorized reseller (“Reseller”) of Coretelligent LLC (“Coretelligent”) in accordance with the terms of an applicable Reseller Partner Agreement to which Coretelligent is a party. USE OF, AND/OR ACCESS TO, THE CORETELLIGENT SERVICES BY ANY OTHER END USER UNLESS OTHERWISE AUTHORIZED PURSUANT TO A VALID AND ENFORCEABLE AGREEMENT BETWEEN SUCH END USER AND CORETELLIGENT IS STRICTLY PROHIBITED. Coretelligent and End User may be referred to hereinafter as a “Party” or together as the “Parties.” END USER IS RESPONSIBLE FOR CAREFULLY READING THIS EUA BEFORE ACCEPTING AND/OR ACCESSING OR USING ANY SERVICES OF CORETELLIGENT. BY ACCEPTING AND/OR ACCESSING OR USING SUCH SERVICES, END USER CONFIRMS THAT END USER HAS READ AND ACCEPTS THIS EUA.
SECTION 1 – INTELLECTUAL PROPERTY
1.1 Ownership. Subject to any licenses expressly granted in this Agreement or any SOW, Coretelligent retains all right, title, and interest in and to all intellectual property developed by it that is used in performing the Services, as well as any and all derivatives, improvements or extensions thereof, and including all methodologies, formulas and trade secrets , whether or not protectable under patent, copyright or other law (collectively, “Coretelligent IP”), and all such Coretelligent IP shall be deemed to be Confidential Information (as hereinafter defined) of Coretelligent hereunder. Notwithstanding the foregoing, Client shall own all copies of documentation and reports related to the Services delivered by Coretelligent and may make copies for its own internal business purposes.
1.2 License. To the extent that the use of Coretelligent IP is required by Client to derive the intended benefit of the Services, Coretelligent hereby grants to Client, subject to Client’s payment obligations, a royalty-free, worldwide, non-exclusive, right to use the Coretelligent IP solely for such purpose during the term of this Agreement. Except as expressly set forth herein, Coretelligent shall retain all right, title and interest in and to all elements of the Coretelligent IP, and any and all derivatives, improvements or extensions thereof, as well as all methodologies, formulas and trade secrets used by Coretelligent in performing the Services hereunder.
SECTION 2 – CONFIDENTIALITY
2.1 Protection of Confidential Information. Each Party agrees that, with respect to any Confidential Information that is disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, the Receiving Party shall not disclose such Confidential Information to any third party or use it for any purpose except in connection with its rights and obligations under this Agreement. The Receiving Party shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Disclosing Party’s Confidential Information by exercising the same level of care, but no less than a reasonable degree of care, that a Party uses to protect its own Confidential Information of a similar nature. Each Party shall permit access to Confidential Information of the other Party only to those of its directors, officers, employees, contractors, consultants, agents, third-party service providers or other authorized representatives (collectively, “Representatives”) who have a bona fide need to know such Confidential Information for purposes of this Agreement and who are subject to obligations of confidentiality and non-use at least as restrictive as those contained herein. Each Receiving Party shall be responsible for the compliance of its Representatives with the obligations of confidentiality and non-use set forth herein and shall be liable for any breach thereof.
2.2 “Confidential Information” means all information concerning a Party or any of its subsidiaries or Affiliates that is not generally known to the public and that is marked confidential or proprietary or that a reasonable person should consider to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” shall include, but not be limited to, a Party’s technology, business plans, techniques, methodologies, pricing, marketing and sales’ strategies, client information and other non-public materials and information regarding such Party’s business operations and the technology and know-how related to the Services, as well as the terms of this Agreement (but not the fact of the Agreement’s existence). Notwithstanding the foregoing, “Confidential Information” does not include information that: (i) is, as of the time of disclosure by a Party, or thereafter becomes, part of the public domain through a source other than the Receiving Party ; (ii) was lawfully in the possession of the Receiving Party at the time of disclosure, as evidenced by its written records; (iii) is independently developed by the Receiving Party without reference to or reliance upon any Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed. In the event the Receiving Party is required by law or legal process to disclose any Confidential Information, the Receiving Party shall, to the extent permitted by law, provide prompt notice of such to the Disclosing Party so that legal protection for the Confidential Information may be sought. In the event that a protective order or other remedy is not obtained, each Party will furnish only that portion of the Confidential Information that is legally required. Upon termination of this Agreement, each Party will promptly either return or destroy all tangible Confidential Information as requested by the other Party, retaining only such information as is necessary for recordkeeping in the ordinary course of business.
SECTION 3 – EQUIPMENT
6.1 Purpose. Client specifically acknowledges that the Equipment is leased to Client solely for commercial or business purposes and not for personal, family, or household purposes.
6.2 Location. The Equipment shall be kept at the location specified above, or, if none is specified, at Client’s address as set forth above and shall not be removed without Coretelligent’s prior written consent.
6.3 Ownership. The Equipment is, and shall remain, the property of Coretelligent, and Client shall have no right, title or interest therein or thereto except as expressly set forth in this Lease. The Equipment shall remain personal property even though installed in or attached to real property.
6.4 ASSIGNMENT BY CLIENT PROHIBITED. WITHOUT CORETELLIGENT’S PRIOR WRITTEN CONSENT, CLIENT SHALL NOT ASSIGN THIS LEASE OR SUBLEASE THE EQUIPMENT OR ANY INTEREST THEREIN, OR PLEDGE OR TRANSFER THIS LEASE, OR OTHERWISE DISPOSE OF THE EQUIPMENT COVERED HEREBY.
6.5 Surrender. Client acquires no ownership rights in the Equipment and has no option to purchase same. Upon the expiration or termination of any Schedule or this Lease, or in the event of a default pursuant to Paragraph 20 hereof, Client, at its expense, shall return the Equipment in good repair, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering it, packed and ready for shipment, to such place as Coretelligent may specify.
6.6 Loss and Damage. Client shall bear the entire risk of loss, theft, damage or destruction of the Equipment from any cause whatsoever, and no loss, theft, damage or destruction of the Equipment shall relieve Client of the obligation to pay rent or to comply with any other obligation under this Lease.
6.7 Insurance; Liens; Taxes. Client shall provide and maintain insurance against loss, theft, damage or destruction of the Equipment in an amount not less than the full replacement value of the Equipment, with loss payable to Coretelligent Client shall also provide and maintain comprehensive general all-risk liability insurance, including but not limited to product liability coverage, insuring Coretelligent and Client with a severability of interest endorsement or its equivalent, against any and all loss or liability for damages either to persons or property or otherwise, which might result from or happen in connection with the condition, use or operation of the Equipment, with such limits and with an insurer as are satisfactory to Coretelligent. Each policy shall expressly provide that said insurance as to Coretelligent and its assigns shall not be invalidated by any act, omission or neglect of Client and cannot be canceled without 30 days written notice to Coretelligent. As to each policy, Client shall furnish to Coretelligent a certificate of insurance from the insurer, which certificate shall evidence the insurance coverage required by this Paragraph and shall designate Coretelligent as loss payee and/or additional insured. Coretelligent shall have no obligation to ascertain the existence or adequacy of insurance, or to provide any insurance coverage for the Equipment or for Client’s benefit.
Client shall keep the Equipment free and clear of all levies, liens, and encumbrances. Client shall be responsible for all taxes and fees (local, state and federal) which may now or hereafter be placed on the leasing, rental, sale, possession or use of the Equipment, excluding however, all taxes on or measured by Coretelligent’s net income. With respect to personal property taxes, if the purchase option set forth herein is $1.00, or if Client is required to purchase the Equipment at the conclusion of the rental payments, Client shall file any required personal property tax returns and shall provide Coretelligent with proof of payment. If the purchase option is other than as described in the previous sentence. Coretelligent shall pay personal property tax and bill Client for reimbursement. If Coretelligent is billed for such charges or taxes or if Client falls to pay such charges or taxes. Coretelligent shall make payment, shall notify Client of Such payment, and Client shall repay to Coretelligent the amount thereof with 15 days after such notice is mailed to Client.
6.8 Indemnity. Client shall indemnify Coretelligent against any claims, actions, damages or liabilities, including all attorney fees, arising out of or connected with the Equipment, without limitation. Such indemnification shall survive the expiration, cancellation or termination of this Lease. Client waives any immunity Client may have under any industrial insurance act with regard to indemnification of Coretelligent.
SECTION 4 – WARRANTIES; LIMITATION OF LIABILITY
6.1 Warranties. Coretelligent warrants that: (a) the Services will be performed by qualified personnel with reasonable care and in a diligent and professional manner consistent with generally accepted industry standards for such Services; (b) the Services and Products provided under each SOW will conform in all material respects to the applicable specifications and to the descriptions contained therein; and (c) the Services will be performed in material compliance with all applicable federal, state and local laws, statutes, regulations and ordinances, including, but not limited to, the Standards for the Protection of Personal Information of Residents of the Commonwealth, 210 CMR 17.00 et al.
6.2 Remedy. Coretelligent’s sole obligation, and Client’s exclusive remedy, for any material breach by Coretelligent of any warranties or other obligations contained in this Agreement or any SOW shall be that Coretelligent will use reasonable commercial efforts to promptly cure such breach or, if Coretelligent is unable to effect such cure, Client may terminate this Agreement or the applicable SOW in accordance with Section 7 and Coretelligent will grant Client a refund of any fees paid hereunder for the affected portion(s) of the Services and/or Products.
6.3 Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES, PRODUCTS AND EQUIPMENT ARE PROVIDED AND ACCEPTED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO CONDITION, DESIGN, PERFORMANCE, ACCURACY, COMPLETENESS OR OPERATION, AND CORETELLIGENT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE, THE WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENT OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO, OR LATENT DEFECTS. CLIENT LEASES THE EQUIPMENT “AS IS” AND WITH ALL FAULTS.
NO WRITTEN OR ORAL REPRESENTATION MADE BY CORETELLIGENT PERSONNEL OR OTHERWISE WHICH IS NOT CONTAINED IN THIS AGREEMENT WILL BE DEEMED TO BE A WARRANTY BY CORETELLIGENT OR GIVE RISE TO ANY LIABILITY OF CORETELLIGENT WHATSOEVER. DEPLOYMENT OF CORETELLIGENT SERVICES IN CLIENT’S ENVIRONMENT DOES NOT ACHIEVE THE IMPOSSIBLE GOAL OF RISK ELIMINATION, AND CORETELLIGENT MAKES NO GUARANTEE THAT INTRUSIONS, COMPROMISES OR ANY OTHER UNAUTHORIZED ACTIVITY WILL NOT OCCUR.
If the Equipment does not operate as represented or warranted by the supplier or manufacturer, or is unsatisfactory for any reason, regardless of cause or consequence, Client’s only remedy, if any, shall be against the supplier or manufacturer of the Equipment and not against Coretelligent.
6.4 Third-Party Warranties. Coretelligent hereby acknowledges that any manufacturer’s and/or seller’s warranties are for the benefit of both Coretelligent and Client. To the extent permitted by the manufacturer or seller, and provided Client is not in default under this Lease, Coretelligent shall make available to Client all manufacturer and/or seller warranties with respect to Equipment.
(a) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF ACTUAL OR ANTICIPATED REVENUE OR PROFITS, COSTS TO PROCURE REPLACEMENT GOODS OR SERVICES, LOSS, DAMAGE TO OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, LOSS OF USE OF SERVICE OR EQUIPMENT, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY INCLUDING BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND PRODUCT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Coretelligent’s maximum liability, and Client’s sole and exclusive remedy, for any and all claims arising under or in connection with this Agreement, regardless of the form of the action, whether in breach of warranty, contract, tort, strict liability or otherwise, will not exceed the aggregate fees actually paid to Coretelligent under the specific Statement of Work giving rise to such claim.
(c) Notwithstanding anything to the contrary set forth in this Section 4, in no event will Coretelligent have any liability under this Section 5 or otherwise for any loss suffered by Client as a result of Client’s failure to heed, in a prudent and timely manner, any written recommendation by Coretelligent to Client regarding the necessity of upgrading service or replacing or making improvements to Client’s existing infrastructure if Coretelligent reasonably believes, based on supporting evidence, that such loss would not have occurred but for Client’s failure to heed such recommendation.
6.6 Basis of the Bargain; Failure of Essential Purpose. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement represent the Parties’ agreement as to the allocation of risk between the Parties in connection with Coretelligent’s obligations under this Agreement, and that such limitations, exclusions and disclaimers will survive and apply even if found to have failed of their essential purpose. The Parties acknowledge that Coretelligent has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the Parties.
SECTION 5 – ACCEPTABLE USE POLICY; CLIENT RESPONSIBILITIES
6.1 Client’s use of the Services, Products and Coretelligent property (including all content transmitted via the Services and Products) shall comply with all applicable laws and regulations. The Services or Products provided by Coretelligent act only as a conduit for transmission of data, and, therefore, Coretelligent is not subject to the Health Insurance Portability and Accountability Act, or Gramm-Leach-Bliley Act. Therefore, Client is solely responsible for complying with such statutes, rules and regulations.
6.2 In connection with Coretelligent’s provision of Services this Agreement, Client is disclosing information to Coretelligent, or Coretelligent may, in the provisioning of Services to Client, have access to, information that can be used to identify an individual, including, without limitation, names, signatures, addresses, telephone numbers, and/or e-mail addresses (collectively, “Personal Information”). In connection with the Personal Information that has been provided or made available by or on behalf of Client to Coretelligent in connection with the Services, Client represents and warrants that it has the legal right and authority to provide the Personal Information and that such Personal Information has been collected lawfully from individuals under applicable law. Client furthermore represents and warrants that Coretelligent’s processing of the Personal Information consistent with this Agreement will not violate applicable international, federal, state and local laws concerning the privacy security, or processing of Personal Information, including without limitation, as applicable, data breach notification laws, consumer protection laws, laws concerning requirements for website and mobile application privacy policies and practices, data security laws, and laws concerning email, text message, or telephone communications or cause a breach of any agreements between the Client and any third party. Client instructs and authorizes Coretelligent to process and use the Personal Information as reasonably necessary for the provision of the Services and represents and warrants that it is and will at all relevant times remain duly and effectively authorized to give such instructions.
6.3 Additionally, and without limitation of the foregoing, Client covenants that it shall not use the Services or any Coretelligent Property to:
- engage in activity intended to or that may foreseeably interfere with the service of another user, host or network;
- distribute software, programs that may impair the performance of or otherwise damage data and/or computer systems;
- forgo or misrepresent a message header of an electronic transmission originating or passing through Coretelligent’s network;
- transmit unsolicited e-mail to multiple recipients, send large amounts of e-mail repeatedly or send email that annoys, harasses or threatens another person or entity, attempt to use Coretelligent servers as a mail drop or name server for SPAM, send unsolicited bulk e-mail from another internet service provider’s network advertising or implicating any service hosted or provided by Coretelligent, including without limitation e-mail, web hosting, FTP and DNS services, or send e-mail in an attempt to bypass Bayesian filters;
- post messages to newsgroups/blogs/services that are irrelevant, blanket post messages to multiple newsgroups/blogs/services, the post of annoying, harassing and/or threatening messages, violate of any rules, policies or charters posted online by any search engine, subscription web service, chat area, web page;
- engage in any fraudulent activities, including without limitation, the dissemination of intentional misrepresentations or misleading statements, writings or activities made with the intent that the person receiving it will act upon it, obtaining services with the intent to avoid payment, dissemination or collection of pirated software, or hosting of phishing websites;
- attempt to illegally or without authorization access other computers, accounts, or networks, access or attempt to access computer resources belonging to another Party, penetrate or attempt to penetrate security measures of other systems;
- use Coretelligent Services or Coretelligent property without authorization, use the Services, Products or Coretelligent property in a manner that encumbers disk space, processors or other system resources beyond amounts allowed by the specific type of Service or Coretelligent property, or interfere with a Service or Coretelligent property, overload a Service or Coretelligent property, or attempt to disable a host not assigned to
6.3 If Coretelligent determines in its sole and reasonable discretion that Client has violated any of the terms of this Section, Coretelligent may (1) send a warning to Client followed by suspension or termination of the applicable SOW if Client does not immediately cease the violation and/or (2) immediately suspend or terminate Service with or without notice. Coretelligent will enforce this Section in its sole discretion according to the severity of the offense and Client’s history of prior breaches of the terms of this Section. Severe and/or repeated offenses will result in immediate termination of Services. Coretelligent shall not be liable for damages of any nature suffered by Client, any end-user or any third-party resulting in whole or in part from Coretelligent exercising its rights under this Section.
6.4 Client represents that its policies and procedures: (1) its employees and contractors to use Client’s information technology systems solely for appropriate business purposes; (2) provide for the physical protection of equipment and devices under Client’s control; and (3) provide for the reasonable safeguarding and protection of critical or sensitive technology system information.
6.5 Client shall be solely responsible for purchasing and maintaining all end user software licenses unless Coretelligent has expressly and specifically agreed to purchase a particular software license as part of its work under an SOW.
6.6 Client acknowledges that, in order for Coretelligent to provide satisfactory Services hereunder and pursuant to any SOWS executed between the parties, Coretelligent may require periodic or regular access to such individual(s) within Client’s organization who oversee Client’s IT department (if any) or, if Client does not have IT personnel on staff, an executive-level employee with Client who has decision-making authority with respect to IT-related matters. Accordingly, Client agrees to use commercially reasonable efforts to provide Coretelligent with such access upon Coretelligent’s request.
SECTION 6 – GENERAL.
6.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement, together with all rights and obligations hereunder, to any successor in interest upon written notice to the non-assigning Party in the event of a sale of all or substantially all of a Party’s voting rights or assets. Any attempted or purported assignment without such required consent shall be void and a material breach of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties hereto.
6.2 Choice of Law; Jurisdiction. This Agreement, all SOWs issued pursuant thereto, and all matters arising out of or relating to this Agreement or any SOW, are governed by, and shall be construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the conflict of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts. Any suit, action, or proceeding arising out of or relating to this Agreement or any SOW issued pursuant thereto shall be instituted in the federal court or state court located in Norfolk County in the Commonwealth of Massachusetts. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
6.3 Attorneys’ Fees and Costs. If any Party institutes any suit, action, or proceeding (“Action”) against the other Party arising out of or relating to this Agreement or any SOW executed pursuant thereto, including, but not limited to, contract, equity, statutory, and tort claims, the prevailing Party in such Action shall be entitled to receive, and the non-prevailing Party shall pay, in addition to all other damages or remedies to which the prevailing Party may be entitled, the costs incurred by the prevailing Party in conducting the Action, including reasonable attorneys’ fees and court costs. This also includes fees relating to costs of collection of unpaid invoices.
6.4 No Solicitation. During the term of this Agreement and for twelve (12) months thereafter, neither Party shall, directly or indirectly, for such Party’s benefit or on behalf of any other person or business entity, solicit, recruit, entice or persuade any employee, former employee or contractor of the other Party who had contact with the first Party or is or has been, directly or indirectly, involved in providing Services to Client hereunder. An employee or contractor of a Party shall be deemed covered by this Section while so employed or under contract and for a period of twelve (12) months thereafter. Recognizing that compensatory monetary damages resulting from a breach of this Section would be difficult to prove, the Parties agree that such breach will render the breaching Party liable to the non-breaching Party for liquidated damages in the amount of two hundred fifty thousand dollars ($250,000.00) for each such individual.
6.5 Independent Contractor. Coretelligent is an independent contractor of Client and nothing herein shall be construed to establish the Parties as partners, joint ventures, or agents of each other in any way whatsoever. Neither Party shall have the authority to make any warranties or representations, or assume or create any obligations, on the other’s behalf. Each Party shall be solely responsible for the actions of its respective employees, agents and representatives.
6.6 Amendment; Waiver. Neither this Agreement nor any SOW may be modified, waived, supplemented or amended except in a writing duly signed by authorized representatives of each Party. A waiver with respect to one event shall not be construed as a continuing waiver with respect to the subject matter thereof, or as a bar to or waiver of any right or remedy as to subsequent events.