Master Services Agreement

This Master Services Agreement (“Agreement”) is between Ciracom, Inc. (“Ciracom”), with a principal place of business at Herndon, Virginia and the customer accepting and agreeing to these terms (“Customer”). Customer and Ciracom may be referred to in this Agreement individually as a “Party” or jointly as the “Parties.” This Agreement governs all Products and Services, as defined below, provided by Ciracom to Customer.

Electronic Execution

The Parties acknowledge and agree that (a) this Agreement, any amendments or modifications to the Agreement, and any Order under this Agreement can be entered into electronically and enforceable in accordance with laws applicable to the recognition of electronic signatures, including without limitation the Electronic Signatures in Global and National Commerce Act (the E-SIGN Act) (collectively, “Electronic Signature Laws”); (b) the electronic signature utilizing the method designated by Ciracom or otherwise complying with applicable Electronic Signature Laws constitutes the individual’s signature, acceptance and agreement the same as if actually signed in writing; (c) this Agreement shall constitute “original” documents when printed from electronic files and records established and maintained by either Party in the normal course of business; and (d) the individual signing this Agreement electronically is authorized to enter into this Agreement on behalf of the Party to this Agreement.

Definitions
Certain capitalized terms used in this Agreement shall have the meanings set forth below.
1. “Additional Support Services” means Professional Services provided on a time and materials basis.
2. “Cloud Services” means web-based software, Software-as-a-Service, or other online Products, including, without limitation, Microsoft Software products offered for licensing and resale by Ciracom. Please note that Cloud Services are included within Section 3 (Products).
3. “Confidential Information” means all information or material which (i) gives a Party some competitive business advantage, gives a Party the opportunity of obtaining some competitive business advantage, or the disclosure of which could be detrimental to the interests of a Party; and (ii) which is either (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) known by the Parties to be considered confidential and proprietary or (C) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. The Documentation and Products are deemed the Confidential Information of Ciracom.
4. “Documentation” means Ciracom’s then current generally available documentation, specifications, user manuals, etc. for the Products and Services.
5. “Effective Date” has the meaning set forth in Section 12.1 (Term).
6. “Managed Remote Management and Monitoring Services” means the services provided pursuant to the Remote Management and Monitoring Services per the Order Form.
7. “Microsoft Software” means all Microsoft cloud-based software and software offerings offered for license and/or resale by Ciracom.
8. “Order” means an order for Cloud Services or Products to be purchased by Customer under this Agreement.
9. “Order Form” means an online confirmation page or an ordering document specifying the Products and Services to be provided hereunder that is entered into between Customer and Ciracom or any of our Affiliates.
10. “Product Support” means any maintenance and support of any Products provided by Ciracom.
11. “Products” means any Cloud Services, software (including Software-as-a-Service), documentation, hardware, equipment, accessories, cabling, material, supplies, parts, and other goods that Ciracom sells or resells to Customer.
12. “Purchase Order” means a purchase order or other similar document or communication from Customer to Ciracom delivered in connection with a sales proposal, Order Form or a SOW.
13. “Services” means any professional services, including consulting, development, implementation, and installation services agreed upon by the Parties and set forth in a SOW or any Product Support purchased pursuant to an Order.
14. “Software Licenses” means all software licenses sold, resold, or sublicensed by Ciracom to Customer, including all Third-Party licenses (e.g., Microsoft Software licenses) ordered, agreed to, or otherwise accepted by Customer in connection with its purchase of Cloud Services under this Agreement.
15. “Statement of Work” or “SOW” means a statement of work that defines the specifics of the Services to be performed by Ciracom under this Agreement.
16. “Subscription Term” means the period of time during which Users are permitted to use the Services hereunder, as specified in the applicable Order Form and including all renewals or extensions thereof.
17. “Third-Party Hardware” means equipment manufactured by neither Ciracom nor Customer used by either Customer or Ciracom in the delivery of Professional Services.
18. “Third-Party Items” means certain Products may be supplied, licensed, or manufactured by Third Parties and resold to Customer.
19. “Third-Party Software” means licensed object code owned by neither Ciracom nor Customer used in the delivery of Professional Services.
Orders. Customer may place an Order by executing and delivering to Ciracom the Order Form. Customer’s Order shall be deemed to incorporate these terms and conditions with or without reference in the Order to this Agreement. Orders for Products shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. Except as provided in Section 12.2 (Termination) and Section 3.1 (Acceptance and Returns), no Orders for Products may be terminated, cancelled, or rescheduled without Ciracom’s consent. If Customer asks Ciracom to cancel or reschedule a Product Order less than ten (10) days before the original scheduled shipping or delivery date, and Ciracom consents to such cancellation or reschedule, then such Order shall be subject to a charge of fifteen percent (15%) of the total invoice amount relating to the affected Products. Ciracom reserves the right to allocate sales of Products and Services among its customers in its sole discretion.
Products
1. Acceptance and Returns. All sales are final, non-refundable, and non-returnable except with respect to Products that do not meet applicable specifications in the relevant Documentation or that are not identified in the Order. Inspection and acceptance of the Products shall be Customer’s responsibility. Customer is deemed to have accepted the Products unless written notice of rejection is received by Ciracom within ten (10) days after delivery and activation of the Products. Customer irrevocably waives any right to revoke acceptance thereafter.
2. Cloud Services. Unless provided otherwise in any terms and conditions accompanying the Cloud Services, Ciracom grants Customer a non-exclusive, non-transferable license to use the Cloud Services solely in connection with its use of the associated Products.
3. Connectivity and Hardware. Customer is solely responsible for all telecommunication, Internet connections, and associated fees required to access the Cloud Services, as well as all hardware and software on the Customer site.
4. Customer Data. Customer grants Ciracom a non-exclusive, world-wide, royalty-free license to use the data and other information input by Customer into the Cloud Services (the “Customer Data”) for purposes of performing this Agreement. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Ciracom for use as contemplated under this Agreement. Except for the limited license granted in this Section, nothing contained in this Agreement will be construed as granting Ciracom any right, title, or interest in the Customer Data. Customer Data shall be deemed Customer Confidential Information.
5. Information Security. Consistent with any law or regulation applicable to Ciracom and its performance of this Agreement and consistent with Ciracom’s then current practices and procedures, Ciracom will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and the Customer Data. Ciracom will promptly report to Customer any compromise of security that it becomes aware of regarding Customer Data.
6. Use of Products in Certain Applications. Products sold by Ciracom are not designed, intended, or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Customer uses or sells the Products for use in any such applications: (i) Customer acknowledges that such use or sale is at Customer’s sole risk; (ii) Customer agrees that Ciracom and the manufacturer(s) of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) Customer will indemnify, defend and hold Ciracom and the manufacturer(s) of the Products harmless from and against any and all claims, damages, fines, sanctions, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
7. Export/Import Control Compliance. The sale, resale or other disposition of Products and any related technology or documentation may be subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Customer is solely responsible for complying with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export or import any Products to any country to which such export or transmission is restricted or prohibited. Customer understands and acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
8. Restrictions. Customer may not: (i) reverse engineer, disassemble, decompile or otherwise attempt to reveal the trade secrets or know how underlying the Products, except to the extent expressly permitted under applicable law; (ii) use Ciracom’s intellectual property and Confidential Information to develop a product that is similar to the Products; (iii) use any Ciracom Confidential Information to contest the validity of any Ciracom intellectual property; (iv) remove or destroy any copyright notices, other proprietary markings or confidentiality legends placed on or made available through the Products; or (v) use the Products in any manner or for any purpose inconsistent with the terms of this Agreement or the Documentation. Software Products shall only be used for the licensed number of nodes, networks, or hosts for which Customer has paid the applicable fees.
9. Intellectual Property Ownership
  1. Cloud Services. Ciracom and its licensors and manufacturers own all right, title, and interest, including intellectual property rights, in all Products, including the Cloud Services, and all enhancements, modifications, and updates thereto. Except for the express licenses granted in this Agreement, Ciracom is not granting or assigning to Customer any right, title, or interest, express or implied, in or to Ciracom’s intellectual property. Ciracom reserves all rights in such property. Customer shall have the right and license to use the Cloud Services in accordance with the terms of this Agreement and all Third-Party licensing terms accompanying or otherwise applicable to the Cloud Services. The term of the license shall be for the period set forth in the applicable Order.
  2. Microsoft Software. Without limiting the generality of the foregoing, as a condition to Ciracom selling the Software License(s) to Customer, Customer must accept the terms and conditions of the Microsoft Customer Agreement (the “Microsoft EULA”) at https://www.microsoft.com/licensing/docs/customeragreement. By agreeing to a Ciracom Order for Products and/or Services that include Microsoft Software and Licenses, Customer acknowledges having read and agreed to the terms and conditions of the Microsoft EULA. In the event of a conflict between the terms of this Agreement and any terms of the Microsoft EULA, the terms of the Microsoft EULA will prevail and apply.
  3. Professional Services and Deliverables. Unless set forth otherwise in the applicable SOW, Ciracom shall own all right, title, and interest in and to all software, reports, materials, and other deliverables (collectively, “Deliverables”) developed or prepared by Ciracom for Customer. Ciracom agrees that upon receipt of payment in full of the fees associated with the Deliverable which constitutes the Deliverables, Ciracom shall grant Customer a non-exclusive, non-transferable, perpetual license to use the Deliverables incorporated into the Deliverables for Customer’s internal business purposes. Except as may otherwise be provided in a SOW, Customer shall not rent, sell, assign, lease, sublicense, or otherwise transfer the Deliverables. In the event, by operation of law or otherwise, Customer is considered the owner of any IP rights in the Custom Content, excluding the limited license granted herein, Customer hereby irrevocably and perpetually assigns, conveys, and transfers all such rights to Ciracom. Notwithstanding the foregoing, the Parties may agree in the applicable Statement of Work that some or all of the Deliverables Statement of Work are and will be owned by Customer.
10. Third-Party Products. Certain Products may be supplied, licensed, or manufactured by Third Parties and resold to Customer (the “Third-Party Items”). Third-Party Items may be subject to Third-Party terms and conditions, including end user license agreements, accompanying the Products at the time of delivery (the “Third-Party Terms”). Customer’s use of the Third-Party Items will indicate its agreement to be bound by the Third-Party Terms. For any cancelations of services, customer will be responsible to pay the balance owed to Ciracom for any Third-Party services and in full. CIRACOM MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH REGARD TO ANY THIRD-PARTY ITEMS. CIRACOM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD-PARTY ITEMS. CUSTOMER SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD-PARTY ITEMS FOR WARRANTY AND PERFORMANCE INFORMATION, INCLUDING ANY THIRD-PARTY TERMS.
11. Aggregated Data. Customer grants Ciracom a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use data derived from use of the Products and Services (the “Aggregated Data”) for Ciracom’s business purposes, including the provision of products and services to Ciracom’s other customers; provided the Aggregated Data is combined with similar data from other customers and not identifiable to Customer. The Aggregated Data will not be considered Customer Confidential Information.
12. Additional Ciracom Terms and Conditions. As a condition to Customer utilizing Ciracom’s Products, website, or otherwise, the Customer acknowledges having read and agreed to the terms and conditions of the Ciracom Terms of Use and Privacy Policy, available on the Ciracom’s website. Ciracom may change the Ciracom Terms of Use and Privacy Policy from time to time at its sole discretion.
Services
1. Statement of Work (SOW). SOWs will include the following: (i) a description of the Services and the Deliverables to be provided by Ciracom; (ii) the timeframe for the Services and compensation to be paid to Ciracom; (iii) any additional terms and conditions for the Services; and (iv) each Party’s responsibilities. Each SOW must be agreed to (which may be electronic) by duly authorized representatives of both Parties to be effective. Unless otherwise provided in a SOW, Ciracom will be compensated for Services on an hourly basis in accordance with Ciracom’s then current time and materials rates. Fees related to certain Services in a SOW may be variable or may be adjusted if certain Services assumptions, including project timeframes or scope of Services, increase, change or are incorrect. Notwithstanding the foregoing, any changes to a SOW will be made in a writing signed by duly authorized representatives of both Parties. Each SOW will be attached to, incorporated into, and governed by this Agreement by reference. Ciracom will only be responsible for performing those Services expressly identified in a SOW. Ciracom will use reasonable efforts to complete the Services within the times, if any, set forth in the SOW.
2. Customer Obligations. In connection with the Services provided under each SOW, Customer will, at all times and diligently and in good faith, comply with Ciracom’s reasonable requests to furnish Ciracom or perform, at Customer’s expense: (i) all technical matter, data, information and operating supplies, together with knowledgeable personnel, as reasonably determined by Ciracom to be necessary for the performance of the SOW; (ii) access to Customer facilities, systems, and personnel; and (iii) any other specific obligations of the Customer set identified in the SOW. Ciracom’s ability to perform the Services is contingent on the foregoing obligations and any other assumptions provided in the SOW.
Personnel
1. Suitability. Ciracom shall assign employees and subcontractors with qualifications suitable for the work described in the relevant SOW. Ciracom may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
2. Non-Solicitation. Customer acknowledges and agrees that the employees and consultants of Ciracom who perform the Professional Services are a valuable asset to Ciracom and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the termination or expiration of this Agreement it shall not offer employment or engagement (whether as an employee, independent contractor, or consultant) to any Ciracom employee or consultant who performs any of the Professional Services. Customer agrees that for each individual that Customer hires or engages in violation of this Section, Customer shall pay to Ciracom a Conversion Fee equal to fifty percent (50%) of the annual cumulative value of salary and benefits paid or payable to that individual by either Customer or Ciracom, whichever amount is greater. A Conversion Fee shall be due and payable regardless of the employment classification given to the individual hired (such as “full time” “contractor” “part time” or “temporary”) or the hiring entity (whether Customer, Customer’s affiliate, or a related company).
Payment Terms
1. Prices. Prices will be specified by Ciracom and will be applicable for the period specified in the Ciracom sales proposal, SOW (as applicable) or Order Form. If no period is specified, prices will be applicable for thirty (30) days. Notwithstanding the foregoing, prices will be subject to increase in the event of an increase in Ciracom’s costs or other circumstances beyond Ciracom’s reasonable control. Ciracom’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all taxes associated with Customer’s purchases hereunder (with the exception of any Ciracom income or employee taxes). If Ciracom has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, Ciracom will invoice Customer and Customer will pay that amount unless Customer provides Ciracom with a valid tax exemption certificate authorized by the appropriate taxing authority.
2. Online Payments. Monthly recurring charges and fees for Products and Services must be paid by credit card; all other charges and fees for Products and Services may be paid by credit card, wire or ACH. All charges and fees will be billed to the designated form of payment during the setup and registration process. Customer represents and warrants that (i) any credit card or bank account information Customer supplies is true, correct, and complete, (ii) charges incurred by Customer will be honored by its credit card company or bank, (iii) Customer will pay the charges incurred by Customer in the amounts posted, including any applicable taxes. Customer is the person in whose name the card was issued, and Customer is authorized to make a purchase or other transaction with the relevant credit card and credit card information. Customer (i) authorizes Ciracom to charge such credit card for all SOW listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as applicable. If applicable: If Customer provides valid credit card information to Ciracom, Customer (i) authorizes Ciracom to charge such credit card for all SOW listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as applicable, and (ii) shall ensure that the credit card information is current and valid and promptly update the information if the credit card expires. Credit Card charges shall be made annually in advance, unless expressly otherwise stated in the applicable Order Form. Ciracom does not accept credit card payments for invoices of more than $10,000 USD.
3. Expenses. Customer will reimburse Ciracom for any and all reasonable expenses incurred by Ciracom in connection with the performance of the Services, including travel expenses, lodging, meals, parking fees, copying charges, delivery charges, postage, telephone charges and other related expenses.
4. Due Date; Late Payments. Ciracom will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Amounts due for Products and Services will be invoiced by Ciracom monthly or as otherwise expressly provided in the applicable Order Form. If Customer’s credit card or other payment method is denied or rejected, or any amount is otherwise not paid upon the due date, Ciracom shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due. Customer shall also pay all Ciracom’s reasonable costs of collection, including but not limited to reasonable attorney's fees. Ciracom may also, at its sole discretion, terminate or suspend the Customer’s access to Customer’s Products and Services in the event of a late payment or failure to pay any amounts owed to Ciracom.
5. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Ciracom’s is thirty (30) or more days overdue, Ciracom may, without limiting Ciracom’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and Suspend Ciracom’s Services to Customer until such amounts are paid in full. Ciracom will give Customer at least 10 days’ prior notice, before Suspending Services to Customer pursuant to the foregoing.
6. Credit Approval; Application of Payment. All SOWs and Orders are subject to credit approval by Ciracom. Customer agrees to submit such financial information from time to time as may be reasonably requested by Ciracom for the establishment and/or continuation of credit terms. Any payment received from Customer may be applied by Ciracom against any obligation owing from Customer to Ciracom.
Confidentiality
1. Confidential Information. During the course of this Agreement, each Party may disclose to the other certain Confidential Information to the other Party. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the receiving Party of this Agreement; (b) was previously known to the receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a Third Party without any breach of any obligation of confidentiality; (d) was independently developed by a Party hereto without reference to Confidential Information of the other Party; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the Party receiving such subpoena or order shall promptly inform the other Party in writing and provide a copy thereof (unless notice is precluded by the applicable process), and shall only disclose that Confidential Information necessary to comply with such subpoena or order.
2. Protection of Confidential Information. Except as expressly provided in this Agreement, the receiving Party will not use or disclose any Confidential Information of the disclosing Party without the disclosing Party's prior written consent, except disclosure to and subsequent uses by the receiving Party's employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving Party's obligations under this Section. Subject to the foregoing nondisclosure and non-use obligations, the receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving Party uses to protect the receiving Party's own Confidential Information and trade secrets, and in no event less than reasonable care. Each Party acknowledges that due to the unique nature of the other Party's Confidential Information, the disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
  PROTECTING EVERY CUSTOMER’S PERSONAL INFORMATION IS IMPORTANT TO CIRACOM. OUR PRIVACY POLICY WHICH SETS OUT HOW CIRACOM DOES THIS IS AVAILABLE HERE: WWW.CIRACOMCLOUD.COM: PRIVACY POLICY. THIS POLICY EXPLAINS THE INFORMATION CIRACOM HOLDS, USES, AND HOW LONG CIRACOM KEEPS IT.
Warranties and Disclaimers
1. Cloud Services. The Cloud Services are subject to warranties provided by the Third-Party supplier of the Cloud Services (e.g., Microsoft with respect to Microsoft Software).
2. Professional Services. Ciracom warrants that (i) Ciracom shall provide the Services in a professional, skillful manner consistent with this Agreement, and (ii) for thirty (30) days after date of delivery, the Services will materially conform to their descriptions on the applicable SOW. Customer must notify Ciracom of any breach of this warranty within thirty (30) days of delivery. Customer’s sole and exclusive remedy, and Ciracom’s sole and exclusive liability, for a breach of the foregoing warranty will be for Ciracom, in its sole discretion, to use reasonable efforts to reperform the Services or terminate the relevant SOW and issue a refund for the portion of price paid for the non-conforming Services.
3. Products. Equipment and other physical Products (as opposed to software Products) are subject to warranties provided by the Third-Party supplier of the Products.
4. Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES IN THIS AGREEMENT OR ANY EXPRESS WARRANTIES PROVIDED BY THE THIRD-PARTY SUPPLIERS OF CLOUD SERVICES, SOFTWARE, SERVICES AND PRODUCTS ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND; AND CIRACOM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE/NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CIRACOM DOES NOT WARRANT THAT THE OPERATION OF THE CLOUD SERVICES, SERVICES AND PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE CLOUD SERVICES, SERVICES PRODUCTS WILL BE CORRECTED, SUBJECT TO APPLICABLE EXPRESS WARRANTIES. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY CIRACOM OR CIRACOM’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED HEREIN.
  THE CLOUD SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT CIRACOM AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER DATA, WEB-SITES, COMPUTERS, OR NETWORKS. CIRACOM WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.
5. Product Support. Ciracom will use commercially reasonable efforts to assist Customer, through Customer’s authorized contact(s), with resolving issues related to the Products, including Cloud Services. Only Customer’s authorized account contact(s) may request technical support. Ciracom’s technical support response time depends on the complexity of the inquiry and support request volume. Ciracom reserves the right to redirect or escalate support requests to the Third-Party software supplier or licensor (e.g., Microsoft for Microsoft Software) in its sole and absolute discretion. Ciracom does not guarantee compatibility of the Software with any specific configuration of hardware or software. Ciracom encourages Customer to discuss any technical and compatibility issues with Ciracom’s technical support personnel.
Indemnification
1. Ciracom and Cloud Services. Ciracom will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a Third Party against Customer arising out of Ciracom’s breach of this Agreement or applicable law. Any indemnification obligations with respect to any Cloud Services will be governed under the applicable Third-Party license terms and other applicable terms and conditions. The foregoing indemnification obligation of Ciracom is contingent upon Customer promptly notifying Ciracom in writing of such claim, permitting Ciracom sole authority to control the defense or settlement of such claim and providing Ciracom reasonable assistance (at Ciracom’s sole expense) in connection therewith. The provisions of this Section state the sole and exclusive obligations and liability of Ciracom and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Products or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
2. Customer Indemnity. Customer will defend and indemnify Ciracom and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Ciracom as a result of any claim by a Third Party arising from Customer’s use of the Cloud Services, Services or Products in breach of this Agreement. The foregoing indemnification obligation of Customer is contingent upon Ciracom promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim, and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
Limitation of Liability. NEITHER CIRACOM NOR ITS VENDORS AND LICENSORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, AND ANY SERVICES RENDERED HEREUNDER. THE TOTAL LIABILITY OF CIRACOM AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, AND ANY SERVICES RENDERED HEREUNDER FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE HEREUNDER BY CUSTOMER FOR THE PRODUCT OR SERVICE AS TO WHICH THE LIABILITY RELATES, BUT IN NO EVENT MORE THAN AGGREGATE FEES PAID BY CUSTOMER IN THE SIX (6) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. The allocations of liability in this Section represent the agreed, bargained-for understanding of the Parties and Ciracom’s compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the Parties to apply regardless of the form of lawsuit or claim a Party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose.
1. 911 Limitation of Liability/Indemnity. CIRACOM SHALL HAVE NO LIABILITY TO CUSTOMER, OTHER USERS OF CUSTOMER ACCOUNT OR ANY THIRD PARTY, AND CUSTOMER WAIVE ALL CLAIMS AND CAUSES OF ACTION, ARISING OUT OF OR RELATED TO THE INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER OR TO ACCESS AN EMERGENCY SERVICE OPERATOR OR EMERGENCY SERVICES. CUSTOMER HEREBY RELEASES AND AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS CIRACOM FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, LIABILITY, DAMAGES, LOSSES, EXPENSES, AND/ OR COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COSTS OF SUIT) BY OR ON BEHALF OF CUSTOMER OR ANY USER OR THIRD PARTY ARISING OUT OF OR RELATED TO THE FAILURE OF 911 TO FUNCTION PROPERLY OR AT ALL, CIRACOM’S PROVISION OF 911 SERVICES OR CIRACOM’S FAILURE TO PROVIDE ACCESS TO 911 SERVICES.
Limitation of Warranties
CIRACOM MAKES NO REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND CUSTOMER ACKNOWLEDGES THAT THIS AGREEMENT IS SUBJECT TO DISCLAIMERS AND LIMITATIONS OF LIABILITY.
Term and Termination
1. Term. This Agreement shall be effective as of the Effective Date as set forth in the applicable Order From and shall remain in full force and effect for the Term of this Agreement as set forth in the applicable Order Form, or until terminated in accordance with the terms of this Section. In the event Customer orders new or additional add-on services (“Additional Services”), the Term of those Additional Services shall be co-terminous with the Term of this MSA. The Term for each license and subscription for Cloud Services (e.g., month-to-month, annually, 3 years, etc.) shall be set forth in the applicable Order. Once ordered, the Customer shall not have the right to terminate a license or subscription for Cloud Services early unless expressly permitted under the applicable Third-Party Terms, including the Microsoft EULA and other applicable terms and conditions.
2. Termination
Dispute Resolution
1. Resolution by Representatives. In the event of any dispute between the Parties to this Agreement arising from or relating to this Agreement or any Order Form or SOW under it, upon the written request of either Party, each of the Parties will appoint a designated representative to endeavor to resolve the dispute. The designated representatives will be executives with sufficient authority to engage in good faith negotiations and bind the Party s/he represents. Except as otherwise expressly provided in this Agreement, no formal proceedings relating to a dispute may be commenced by either Party until the representatives conclude in good faith that amicable resolution through continued negotiation of the matter in issue does not appear likely.
2. Mediation. If the representatives are unable to resolve the dispute within a reasonable period (but in no event more than sixty (60) days from the date of receipt of the written request), the Parties shall (unless they mutually agree otherwise, in writing) submit the dispute for non-binding mediation by a single mediator under the rules of the CPR Institute for Dispute Resolution (www.cpradr.org) (“CPR”) utilizing rules and procedures in place at the time of the dispute. The mediator shall be competent in any technical, legal, or other issues involved in the dispute.
3. Binding Arbitration. In the event the Parties are unable to resolve the dispute within thirty (30) days of commencement of the mediation, or if one Party fails to participate in the mediation as agreed in this Agreement, either Party may refer the dispute to binding arbitration by a sole arbitrator under the CPR Rules for Non-Administered Arbitration of Business Disputes then currently in effect. Unless otherwise agreed by the Parties, any individual who has served as a mediator shall be disqualified from serving as arbitrator in the case. For clarification, except as expressly provided in this Agreement, binding arbitration shall address all formal disputes, controversies or claims between the Parties relating to the Agreement and its formation, breach, performance, interpretation, and application. The place of arbitration shall be Alexandria, Virginia, and the language of the arbitration shall be English. The Federal Arbitration Act shall govern the arbitration. The Parties will participate in the arbitration in good faith and will share equally in the administrative costs of the mediation and arbitration; provided however, that each Party will pay its own attorneys’ fees. The arbitrators will have the authority to apportion liability between the Parties but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms of this Agreement. The arbitrators may, in their discretion: (a) permit limited discovery, including production of documents and depositions, to the extent required by the Parties; and (b) award the prevailing Party its attorneys’ fees and out-of-pocket expenses, including its share of the arbitration fees. Promptly following the conclusion of the arbitration hearing, the arbitrators shall provide to the Parties an opinion describing (i) the bases for their judgment and award and (ii) the reasons for the giving or denial of any award. The decision of the arbitrators (A) shall be confidential; (B) shall be final and binding; and (C) may be entered and enforced in any court of competent jurisdiction. Customer irrevocably waives all objections to venue and jurisdiction of the court in any judicial action, proceeding or claim ancillary to an arbitration arising out of this Agreement. THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL.
4. Litigation. Notwithstanding the terms of the Subsection above, either Party is authorized to institute formal litigation proceedings in court at any time, if commencement of litigation is deemed appropriate by a Party because the Party makes a good faith determination that a breach of the Agreement (or actual or threatened violation of its rights) by the other Party is such that a temporary restraining order or other preliminary, injunctive or equitable relief is necessary. Litigation authorized under this Section shall include the right to seek, in addition to damages, court costs and fees of attorneys and other professionals. Any request by a Party to a court for interim equitable relief against the other Party shall not be deemed a waiver of its obligation to arbitrate under this Agreement.
5. Obligation to Continue Performing. Each Party shall continue performing its obligations under the Agreement while a dispute is being resolved under this Section (except to the extent the issue in dispute precludes some or all performance, or as expressly directed by the other Party not to continue). This Section shall not be construed to limit either Party’s right to terminate the Agreement under its terms.
General Terms
1. General. This Agreement is made under and shall be governed by Virginia law, and United States law without regard to conflicts of law principles. The Parties expressly exclude this Agreement and all transactions under it from the terms of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act. If any of the terms of this Agreement are found to be invalid in a court of law, they shall be interpreted to have the maximum extent permissible, and the Agreement ‘s validity or enforceability shall not be affected (unless as so construed, the Agreement fails to meet the essential business purpose of the Parties). The Parties agree that this Agreement represents the entire understanding with respect to the subject matter and legally supersedes all prior oral or written Agreements, statements, representations, negotiations, or promises. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. The Parties’ failure at any time to enforce or require performance of any of the terms of this Agreement or any right or remedy available under it or at law or equity, or to exercise any option provided within it will in no way be construed to be a waiver of those terms, rights, remedies or options or any other term, condition or covenant of this Agreement, or in any way to affect the validity of this Agreement. The exercise by Customer or Ciracom of any rights, remedies or options provided under this Agreement or at law or equity shall not preclude or prejudice the exercising under this Agreement of the same or any other rights, remedies, or options. The Parties agree to submit exclusively to the jurisdiction of the courts of the Commonwealth of Virginia and US District Court for the Eastern District of Virginia for the resolution of any dispute not resolved by binding arbitration. Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the Parties at the addresses specified on the Order From or at such other addresses as either Party may in the future specify in writing to the other. This Agreement shall inure to the benefit of and be binding upon Ciracom and its permitted successors and assigns and upon Customer and its permitted successors and assigns and may not be amended except in a writing signed by both Parties (except that a Party may change its notice information by giving the other Party prior written notice of the new information and the date upon which it will become effective). The relationship of the Parties under this Agreement is that of independent contractors. Nothing in the Agreement will be deemed to create a partnership, joint venture, agency trust or similar relationship between the Parties and neither Party will be deemed to be an agent of the other nor receive any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other. Nothing in the Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and either Ciracom or any Ciracom Personnel. The Parties’ respective legal rights and obligations and the practical and legal effects of this Agreement have been fully explained to each of the Parties by their respective counsel. Each Party has sought and obtained legal advice from counsel and understands and assents to all the terms in this Agreement and each of them is signing this Agreement freely and voluntarily. This Agreement may be signed by the Parties jointly on a single copy or in any number of identical copies, each signed copy shall be deemed an original, and all copies shall jointly constitute one and the same Agreement. The Parties agree that scanned images of signatures are the same as original signatures and that digital images of the executed Agreement shall be as valid as an original. The Parties expressly waive any right to object to the validity, effectiveness or enforceability of any electronic message or electronically signed Agreement on the ground that any law or rule of evidence requires written signed Agreements. Electronic documents may be introduced as substantive evidence in any proceedings between the Parties as business records as if originated and maintained in paper form. Neither Party shall object to the admissibility of any electronic document for any reason. By placing a name or other identifier on any electronic message/Agreement in connection with this Agreement, the Party doing so intends to sign the message/Agreement with the signature attributed to the content. Pre-printed terms appearing on either Party’s Order Forms, SOWs, invoices, order acknowledgements or similar documents are deemed to have no effect under this Agreement.
2. Force Majeure. Neither Party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such Party, including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage or dispute, governmental act or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, telecommunications interruption provided that the delayed Party: (i) gives the other Party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
3. Entire Agreement; Construction; Modifications. This Agreement, including all SOWs and Orders, constitutes the entire understanding between the Parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. The Parties further agree that there are no other inducements, warranties, representations, or agreements regarding the matters herein between the Parties except as expressly set in this Agreement. This Agreement may not be modified, amended, or altered in any manner except by a written agreement signed by both Parties, and any attempt at oral modification shall be void and of no effect.
4. Customer Purchase Orders. CIRACOM SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY AND ALL TERMS IN ANY PURCHASE ORDER.
5. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Ciracom. Any attempted assignment or delegation without such consent will be void and Ciracom may immediately terminate this Agreement for cause. Except as provided above, this Agreement shall apply to, inure to the benefit of, and be binding upon the Parties hereto and their successors and assigns.
6. On Site Visits. All work where possible will be completed remotely and if required with the assistance of an employee of the Client.
7. No Waiver. The waiver or failure of either Party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder.
8. Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to choice of law principles. The Parties consent and submit to the jurisdiction and venue of the state and federal courts located in Northern Virginia for any dispute relating to the terms, interpretation, or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies).
9. Attorneys’ Fees. The prevailing Party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys’ fees, court costs, costs of investigation, expert fees and other related expenses incurred in connection with any enforcement of rights under this Agreement in law or in equity, including an action for declaratory relief.
10. Survivability. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, payment, and no hiring, and any other provisions which must survive in order to give effect to their meaning, shall survive the termination of this Agreement.
11. Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the Parties at the addresses specified below or at such other addresses as either Party may in the future specify in writing to the other.
12. Headings; Counterparts. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. This Agreement may be executed in two or more original or facsimile counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.