General terms and conditions for Advanced Data & Network Solutions services.
General Terms & Conditions
for Advanced Data & Network Solutions
1.1 Services. "Services" means the obligations of ADNS under this Agreement and all consulting, development, programming, conversion, management, operations, and other services to be performed by ADNS pursuant to each mutually agreed upon and executed Statement of Work (each a "Statement of Work").
Each Statement of Work entered into by the parties shall reference this Agreement and shall be attached hereto and made a part of this Agreement; provided, however, the contents of any Statement of Work shall take precedence over any conflicting provision in this Agreement to the extent necessary to resolve any such conflict. ADNS shall perform all Services at the location(s), on the date(s), and during the term provided for in such Statement of Work.
1.2 Relationship of the Parties. The relationship of the parties to this Agreement shall be as follows:
(a) ADNS shall be an independent contractor of Client. As between ADNS and Client, all persons retained by ADNS to perform Services for Client hereunder shall be employees or subcontractors of ADNS and shall not be employees of Client.
(b) Client shall appoint an individual as "Point of Contact" that shall serve as ADNS's primary contact. ADNS shall be entitled to rely on all oral and written orders and instructions issued by the Point of Contact, including without limitation, instructions to initiate work and incur expenses on Client's account. Client may select and reassign the Point of Contact, provided that any replacement Point of Contact meets the requirements of this Agreement and is otherwise reasonably acceptable to ADNS.
(c) All disputes arising under or related to this Agreement shall be considered in person or by telephone by the Agreement Managers within 10 days after receipt of a notice from either party's Contract Manager specifying the nature of the dispute (a "Dispute Notice"); provided, however, that nothing herein shall prevent or limit a party's right to immediately seek preliminary injunctive relief in a court of Law. Unless the Agreement Managers otherwise agree, either party may pursue its rights and remedies after the earlier of: (i) The occurrence of such meeting or telephone conversation; and (ii) Ten (10) days after receipt of the Dispute Notice. Unless a party notifies the other party of a change in Agreement Managers in accordance with Section 7.4 of this Agreement, the Agreement Manager for ADNS shall be Jason Scheewe (CEO), and the Agreement Manager for Client shall be the first administrative contact listed on the "Contacts and Location Schedule" attached to this agreement.
1.3 Place of Work. ADNS's personnel will perform all work for Client at the Client's premises designated by Client in its sole discretion, except when it is determined by Client that it is mutually beneficial to have a project or task performed off-site or otherwise agreed by the parties in an applicable Statement of Work.
1.4 Conduct of ADNS Personnel. While at Client's premises, ADNS and ADNS personnel shall:
(a) Comply with the requests, rules and regulations of Client regarding safety and health, personal and professional conduct (including adhering to general safety practices or procedures) generally applicable to such Client premises; and
(b) Otherwise conduct themselves in a businesslike manner.
ADNS shall require all ADNS personnel having access to Client Confidential Information to maintain and enforce the terms of Section 7.12 below.
1.5 Employee Solicitation and Hiring. During the period beginning with the commencement date for Services under a particular Statement of Work and ending three (3) months after the completion or termination of the Statement of Work, each party agrees not to actively recruit or solicit for employment any technical, sales, or managerial employee of the other party who become known to such party in course of providing or managing the Services being performed under the Statement of Work provided that nothing herein shall restrict or prevent (i) solicitation of any person who contacts a party through a professional search firm where such party has not directed such firm to solicit that person; (ii) generalized solicitation by advertising and the like which are not directed to specific individuals or employees of the other party; (iii) solicitations of persons whose employment was terminated by the other party or who have terminated their employment with the other party without any prior solicitation.
1.6 Client Cooperation. Client shall cooperate with ADNS by providing to ADNS such information and access to Client's personnel, facilities, equipment, databases, software, and other resources as are specifically set out and agreed to in, or reasonably required for the performance of Services under, a Statement of Work.
2.1 Fees. The fees for ADNS's Services will be charged in U.S. dollars on the terms and at the rates specified in the applicable Statement of Work.
2.2 Expenses. Client shall reimburse ADNS for all actual expenses that are authorized by Client in an applicable Statement of Work or otherwise agreed in writing in advance, reasonably incurred by ADNS and ADNS personnel in the course of performing the Services hereunder and evidenced by receipts provided to Client ("Expenses").
2.3 Invoices. Unless otherwise specified in the applicable Statement of Work, ADNS will invoice Client monthly ("Invoice Period") for the Services furnished and Expenses incurred during the immediately preceding Invoice Period. Invoices for Services rendered on a time-and-materials basis will indicate a breakdown and distribution of charges, by individual, at the rates specified in the applicable Statement of Work.
Statements of Work for Services rendered on a fixed-fee basis will indicate the basis upon which the fees are due and payable (e.g., milestones achieved or date passing).
2.4 Price Adjustment. Commencing one (1) year after the Effective Date of this Agreement, and at each subsequent anniversary, the price of client Agreement will be increased automatically in line with the latest publicly advertised CPI figure (Consumer Price Index) by the Federal Government. Notwithstanding the foregoing, in no event shall Managed Services Monthly Fees be reduced for any year as a result of a CPI adjustment made as provided herein, and in no event shall Managed Services Monthly Fees increase by more than ten percent (10%) for any year as a result of a CPI adjustment made as provided herein.
2.5 Taxes. Client shall be solely responsible to pay all taxes, however designated and of whatever nature, that are levied or imposed by reason of the transactions contemplated by this Agreement, including, without limitation, all sales, use, transfer, privilege, excise and other taxes, duties or surcharges.. Agency shall not be liable for, and Client shall hold harmless and indemnify Agency against, liability for all such taxes, duties and/or surcharges.
2.6 Payments. Each accurate invoice shall be due and payable to ADNS, at the address specified in the preamble to this Agreement, in U.S. dollars within forty-five (45) calendar days after receipt of such accurate invoice. Clients that have checks returned for insufficient funds will be charged a $30 returned check fee.
2.7 Disputed Invoices. Client may reasonably dispute invoices pursuant to Section 1.2(c) of this Agreement. In the event that the dispute is resolved against Client, Client shall pay such amounts at the rate referenced in Section 2.5.
2.8 No Other Charges. Except as expressly set forth in this Agreement, including in an applicable Statement of Work, there shall be no charges, fees, expenses, costs or other amounts payable by Client in respect of the Services.
3.1 Commitment Term. The commitment term of this Agreement shall commence on the Start Date of your signed agreement, unless earlier terminated in accordance with Section 3.2 of this Agreement, shall continue for the term length as outlined in our proposal for services. At the end of the commitment term, this Agreement will be automatically renewed for successive one-year terms, unless earlier terminated in accordance with Section 3.2 of this Agreement.
3.2 Termination. This Agreement may be terminated:
(a) By either party if the other party defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations) under this Agreement:
(i) Upon at least sixty (60) days' notice to the breaching party if such default is capable of being cured and the breaching party does not cure such default within thirty (30) days from the non-breaching party's default notice; or
(b) By either party upon notice received ninety (90) days prior to the end of the then current term; provided that this Agreement shall not be terminated under this clause (b) with respect to all outstanding Statements of Work until such Statements of Work expire or are completed or terminated in accordance with their terms, including any notice requirements provided therein.
Absent any breach by ADNS regarding the applicable Services, Client's obligation to make payment for Services performed by ADNS prior to termination shall survive any termination of this Agreement; and
(c) By either party if the other party makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief, or if an involuntary petition in bankruptcy or other insolvency protection against the other party is filed and not dismissed within sixty (60) days.
3.3 Effect of Termination. Client agrees that if they need to Terminate this Agreement before the end of the Commitment Term, client agrees to pay ADNS the current Agreement Fee multiplied by the number of months left in the current Commitment Term within 14 days of providing ADNS Notification of Termination.
Should there be any pricing adjustments made to this Agreement during a Commitment Term, the Plan Fee used to calculate any Termination Payment will be based on the latter of the original Proposal or any updated Pricing adjustments made in writing from ADNS to Client.
3.3 Return of Properties and Termination of Licenses. Upon the expiration or termination of a Statement of Work:
(a) Any and all licenses granted to ADNS to perform Services under such Statement of Work, shall automatically terminate;
(b) ADNS shall deliver to Client, in the manner requested by Client all of the Client Properties (including all Deliverables, whether completed or in-progress) relating to such Statement of Work; and
(c) Client shall deliver to ADNS, in the manner requested by ADNS all of the ADNS Properties relating to such Statement of Work.
So long as ADNS is not in material breach of any obligation under the applicable Statement of Work, the clauses (a) and (b) of this Section 3.3 shall be subject to ADNS's receipt of payment of all undisputed amounts (and all amounts that Client is obligated to pay upon conclusion of the Dispute Resolution process provided in Section 1.2(c), below) for the Services that produced the applicable Deliverables.
4.1 Client Properties. Software, owned or developed by, or licensed to Client, methodologies, techniques, software libraries, tools, algorithms, materials, products, ideas, designs, and know-how (including all copies, enhancements, modifications, revisions, and derivative works of any of the foregoing) that existed prior to the Effective Date or are acquired by Client from a third party thereafter or developed independently and outside the scope of this Agreement (and associated intellectual property rights) ("Pre-existing Client Properties") and any software, designs, content, methodologies, techniques, processes, inventions, materials or other deliverables developed in whole or in part by ADNS or its Affiliates or contractors, or otherwise provided to Client or its Affiliates, in connection with this Agreement (and associated intellectual property rights) other than ADNS Properties shall be the property of Client ("Deliverables") (Pre-existing Client Properties and Deliverables together shall be jointly referred to as "Client Properties").
As between ADNS and Client, Client will at all times be and remain the sole and exclusive owner of the Client Properties. All Deliverables shall belong exclusively to Client and shall, to the extent possible, be considered a work made for hire for Client within the meaning of Title 17 of the United States Code.
ADNS automatically assigns, and shall cause its Affiliates, contractors and personnel automatically to assign, at the time of creation of the Deliverable, without any further consideration, any right, title, or interest it or they may have in such Deliverable, including any copyrights or other intellectual property rights pertaining thereto.
Notwithstanding the foregoing, Client shall have no ownership or other rights in or with respect to any Deliverable (or portion thereof) created by ADNS hereunder until full payment has been made to ADNS for the Services relating to such Deliverable (or portion thereof). Except as expressly authorized in a Statement of Work accepted hereunder, ADNS will not copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile, or disassemble the Client Properties.
4.2 ADNS Properties. Proprietary or third party software, methodologies, techniques, software libraries, tools, algorithms, materials, products, ideas, designs, and know-how used by ADNS or its Affiliates or contractors in providing Services (including all copies, enhancements, modifications, revisions, and derivative works of any of the foregoing) that:
(a) Existed prior to the Effective Date; or
(b) Are acquired by ADNS from a third party or developed independently of providing the Services hereunder shall be the property of ADNS ("ADNS Properties").
As between ADNS and Client, ADNS shall at all times be and remain the sole and exclusive owner of the ADNS Properties. Client will not copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile, or disassemble the ADNS Properties.
4.3 Properties. The term "Properties" shall mean the Client Properties and ADNS Properties collectively, and "Property" shall mean a Client Property or ADNS Property individually.
5.1 Intellectual Property. If either party (each, as applicable, an "Indemnitee") becomes subject to a claim against it that any portion of the Properties supplied by the other party (an "Indemnitor") (i.e., the Client Properties in the case of Client as Indemnitor, and the ADNS Properties or Deliverables, in the case of ADNS as Indemnitor) infringes a proprietary right of a third party, the Indemnitor shall, with respect to and to the extent of the portion of the claim pertaining to such Property, at its sole expense, defend, indemnify and hold harmless the Indemnitee with respect to such claim and all costs, expenses (including reasonable attorney's fees), fines, penalties, deficiencies, losses, liabilities (including settlements and judgments) resulting from, arising from or relating to such claim.
THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
5.2 Sole Control. If an Indemnitee becomes subject to a third party claim, notice thereof shall be given by the Indemnitee to the Indemnitor as promptly as practicable. Any delay by the Indemnitee in providing such notice shall not limit the Indemnitor's obligations pursuant to this Agreement except to the extent of any losses caused by such delay.
To the extent of the portion of the claim for which the Indemnitor is responsible pursuant to this Agreement, the Indemnitor under any of the indemnities set forth in this Agreement shall promptly assume and have sole control of the defense of any such claim and all negotiations for settlement; provided, however, that the Indemnitee may, at its own cost, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom.
The Indemnitee shall cooperate, at the cost of the Indemnitor, with the Indemnitor in the investigation, trial and defense of such claim and any appeal arising therefrom. The Indemnitor shall not be obligated to indemnify the Indemnitee under any settlement made without the Indemnitor's consent or in the event the Indemnitee fails to reasonably cooperate (at the Indemnitor's expense) in the defense of any such claim.
The Indemnitor shall have no authority to make any admission on behalf of the Indemnitee or enter into any agreement imposing an affirmative obligation on the Indemnitee without the Indemnitee's prior written consent.
5.3 Option to Avoid Infringement.
Without limiting ADNS's indemnification obligations hereunder, in the event that in ADNS's opinion, any portion of the ADNS Properties or any Deliverable developed in connection with this Agreement is likely to or does become the subject of a claim of infringement of any letters patent, copyright, trademark, service mark, trade name, trade secret or other intellectual or proprietary right of any third party (the "Disputed Portion"), ADNS may, at its sole option and expense, procure for Client the right to continue using the Disputed Portion, modify the Disputed Portion to make it noninfringing, or replace the Disputed Portion with a substantially similar, noninfringing replacement.
If ADNS does not exercise one of the above options: (i) ADNS shall send Client a written notice requiring Client to terminate its use of the Disputed Portion within a reasonable period (but not less than thirty (30) days); (ii) Client shall terminate its use of the Disputed Portion within said period; and (iii) ADNS shall refund a pro rata portion of fees paid by Client to ADNS representing the fees paid for the development or provision of the Disputed Portion.
If, however, Client fails to terminate its use of the Disputed Portion after such reasonable notice period, Client shall indemnify ADNS for any and all claims of infringement against it to the extent resulting from Client's continued use of the Disputed Portion.
6.1 Representations and Warranties of Client. Client hereby represents and warrants that it has and for the duration of this Agreement shall have all rights, titles, or interests in the Pre-existing Client Properties required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.
6.2 Representations and Warranties of ADNS.
(a) ADNS hereby represents and warrants that it has and for the duration of this Agreement shall have all rights, titles or interests in the ADNS Properties and Deliverables required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.
(b) ADNS further represents and warrants that the Services provided under this Agreement will be of commercially reasonable quality in accordance with any specifications or requirements set forth in a Statement of Work and will be performed in a good and workmanlike manner and in accordance with industry standards.
Without prejudice to any other right or remedy available by law to Client, any claim for breach of ADNS's warranties under this Section 6.2(b) must be made, by written notice to ADNS, within sixty (60) days following the date of completion of the Services for which the claim is made (or, with respect to any Deliverables that were subject to acceptance testing specified in the applicable Statement of Work, within sixty (60) days following the date of acceptance).
ADNS shall have a thirty (30) day period following receipt of any such notice in which to cure a breach.
(c) ADNS is and for the duration of this Agreement shall be in compliance with all federal, state, local and foreign laws, governmental regulations, rules and requirements and binding administrative and court orders (collectively "Laws") applicable to ADNS, including all Laws applicable to its provision of the Services.
6.3 Representations of ADNS and Client.
(a) Each party hereby represents and warrants to the other party that neither this Agreement nor anything provided to be done hereunder violates any contract, document, understanding, agreement or instrument (including without limitation any covenant not to compete) to which it is a party or may be bound. No party to this Agreement has induced it to breach any other contract, document, understanding agreement or instrument to which it is a party or may be bound.
6.4 NO OTHER WARRANTY.
EXCEPT AS PROVIDED IN THIS AGREEMENT: (A) NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) WITHOUT LIMITING ADNS'S OBLIGATION TO DELIVER THE SERVICES AND/OR DELIVERABLES SET FORTH IN A STATEMENT OF WORK, ADNS MAKES NO GUARANTEES WITH REGARD TO THE RESULTS OBTAINED FROM THE OPERATION OR USE BY CLIENT OF THE CLIENT PROPERTIES OR ADNS PROPERTIES.
THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS MADE FOR THE BENEFIT OF CLIENT ONLY.
6.5 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA, COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATIONS OF LIABLITY SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, A BREACH OF THE CONFIDENTIALITY AGREEMENT, OR DAMAGES CAUSED BY GROSS NEGLIGENCE, RECKLESS CONDUCT OR WILLFUL MISCONDUCT.
7.1 Assignment. Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to an Affiliate of such party or to a successor in interest to substantially all of the business of that party to which this Agreement relates.
For purposes of clarity, and without limitation, a non-assigning party's refusal to consent to an assignment proposed by the other party shall be deemed reasonable if based on grounds that the proposed assignee is not financially stable or is a competitor of the non-assigning party. An assignee of either party authorized hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement.
7.2 No Waiver. No waiver of any provision or of any breach of this Agreement shall constitute a waiver of any other provisions or any other or further breach, and no such waiver shall be effective unless made in writing and signed by an authorized representative of the party to be charged with such a waiver.
7.3 Headings. The headings contained in this Agreement have been inserted for convenience of reference only and shall in no way define, limit or affect the scope and intent of this Agreement.
7.4 Notice. Notice hereunder shall be in writing and sufficient and received if delivered in person, or when sent via pre-paid overnight courier, electronic mail (if an e-mail address is provided below) or sent by U.S. Postal Service (or First Class International Post (as applicable)), addressed as follows:
IF TO ADNS:
60 Ravenscroft Dr.
Asheville, NC 28801
or at such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. All such notices shall be deemed to have been given on (i) the date delivered if delivered personally, (ii) the business day after dispatch if sent by overnight courier, (iii) the third business day after posting if sent by U.S. Postal Service (or First Class International Post (as applicable)), or (iv) the date of transmission if delivered by facsimile or electronic mail (or the business day after transmission if transmitted on a weekend or legal holiday).
7.5 Severability. In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed, and the balance of the Agreement shall continue in full force and effect.
7.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of North Carolina, without regard to its choice of law rules.
7.7 Force Majeure. ADNS will not be liable for any loss, damage or delay arising out of its failure to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God or the Client, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, or transportation embargoes.
7.8 Survival. Each of the provisions of this Agreement shall remain in full force and effect through the End Date of this Agreement, and the terms of Section 1.2, Section 1.5, Section 3.3, Article IV, Article V, Section 6.5, Section 6.12, Sections 7.1 through 7.6, Section 7.9 and any other provisions which by their nature should survive, shall survive such End Date. The "End Date" shall be the effective date of the expiration or termination of this Agreement.
7.9 Entire Agreement. This Agreement, including any Statements of Work hereunder, is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument executed by authorized representatives of the parties.
7.10 Third Party Beneficiaries. This Agreement shall be binding upon, inure solely to the benefit of, and be enforceable by each party hereto and their respective successors and assigns hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any thirty party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7.11 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. Electronic and facsimile signatures shall be sufficient to bind the parties to this Agreement.
7.12 Confidentiality. Each party (the "Receiving Party") will treat as confidential and properly safeguard any and all information, documents, papers, programs and ideas relating to the other party (the "Disclosing Party"), its operations, finances, fees and products, disclosed to the Receiving Party and designated by the Disclosing Party as confidential or which should be reasonably understood to be confidential ("Confidential Information"), except that information that:
(a) Is or falls into the public domain;
(b) Is disclosed to the Receiving Party by a third party which is not under an obligation of confidentiality to the Disclosing Party;
(c) Was already known to the Receiving Party; and/or
(d) Is independently developed by the Receiving Party without reference to the Confidential Information shall not be deemed Confidential Information.
The Receiving Party shall inform the Disclosing Party of all requests for or inquiries into the Disclosing Party's Confidential Information by third parties and shall only provide same when legally compelled to do so after notice to the Disclosing Party and providing the Disclosing Party with sufficient time to permit the Disclosing Party to seek a protective order, and such disclosure shall not be deemed a breach of this Section 7.12. In the course of performing the services required of ADNS hereunder, ADNS may disclose Confidential Information as Client shall have approved in writing in advance for disclosure. This provision shall survive the termination of this Agreement and shall remain in full force and effect for a period of three (3) years following the termination of this Agreement.
When you contact us to lodge a service request only the methods below must be used:
Phone: 828-285-8882
Email: help@adnsolutions.com
Web Portal: https://adnsolutions.connectboosterportal.com/platform/login
Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.
If the issue is being lodged by either phone or external email you must include your name, company and return contact details.
Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.
SERVICE REQUESTS OUTSIDE OF OUR BUSINESS HOURS
Service Requests that must be addressed outside of business hours must be lodged by phone (charges may apply for after-hours work). If not, the Service Request will be viewed on Our next Business Day.
