Master Services Agreement
THIS MASTER SERVICE AGREEMENT (“Agreement”), effective the date (“Effective Date”) that the Statement of Work (“SOW”) is signed and entered into by and between The Digital Investigative Group, INC. (“Master Service Provider” or “THE DIG”), 501 N. Sanders Suite 200, Helena, MT 59601 and the Client named in the SOW, hereinafter called (“Client”).
These terms (“Terms”) apply to your purchases from The Digital Investigative Group, Inc. (“THE DIG”) of services (“Services”), as well as licenses for software, hardware, support, and maintenance services, and/or subscription services (collectively, "Product"). You hereby engage and retain THE DIG to render Services or provide Product, as specifically set forth and limited in the SOW, or subsequent Statements of Work, or any work order as agreed among the Parties (each a “Work Order”) under such SOW. Except as otherwise stated therein, subsequent SOWs or Work Orders shall be made a part of and subject to the terms contained herein. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic SOW, or other mutually acceptable Work Order documentation, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes. In the event of any conflict between the Statement of Work and these Terms, the terms of the Statement of Work will prevail over these Terms.
THE DIG may change these Terms at any time in its sole discretion. Using the Services after the changes to these Terms become effective means the Client agrees to the new terms. If the Client doesn’t agree to the new terms, they must stop using the Services, contact THE DIG, and terminate any current SOW.
2. GENERAL REQUIREMENTS & CONDITIONS.
2.1 System. For the purposes of these Terms, “System” means, collectively, any technology, such as a computer network, computer system, peripheral, or device installed, maintained, monitored, or operated by THE DIG pursuant to and further identified in the SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW, the Client agrees to refrain from modifying or moving the System or installing software on the System, unless THE DIG expressly authorizes such activity. THE DIG will not be held responsible or liable for changes made by the Client without authorization.
2.2 Maintenance; Updates. If patches and other software-related maintenance updates (“Update(s)”) are provided under an SOW, THE DIG will install the Updates only if THE DIG has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. THE DIG will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer or applicable vendor’s instructions.
2.3 Third-Party Service Providers. “Third-Party Services” means Services provided by an entity or a Party other than THE DIG in fulfillment of the SOW requirements whose terms and conditions THE DIG and Client may be legally bound. Entities performing Third-Party Services shall be referred to herein as “Third-Party Service Providers.”
Client’s right to use the Third-Party Services is subject to the Client’s understanding of, compliance with and consent to these Terms and of any Third-Party agreements, which THE DIG does not have authority to vary, alter or amend.
Therefore, THE DIG may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms. The Third-Party Provider may require THE DIG to sign a contract with the Third-Party Provider for its services (“Third-Party Contract”), and the terms of the Third-Party Contract may impose conditions and requirements upon the Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or appear on our website (https://www.thecyberdig.com/master-services-agreement), which identifies the Third-Party Service Provider and a link to its terms and conditions or EULA. The Client hereby agrees to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which the Client has consented THE DIG to contract upon its behalf.
The links are being provided as a courtesy; the Client should monitor the links for the Third-Party Providers to determine if they have the most current Terms and Conditions.
2.4 Third-Party Product Vendors. “Third-Party Products” means software, machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the SOW requirements. Entities providing Third-Party Products shall be referred to herein as “Third-Party Product Vendors.”
THE DIG will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to the Client but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and THE DIG will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product. Unless otherwise expressly stated in an SOW, all Third-Party Products are provided “as is” and without any warranty whatsoever as between THE DIG and Client (including but not limited to implied warranties). The Third-Party Product Vendor may require THE DIG to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Product Contract”), and the terms of the Third-Party Product Contract may impose certain conditions and requirements upon the Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or attached to the SOW, which identifies the Third-Party. The Client hereby agrees to review all Third-Party terms and conditions, and consent to those Third-Party terms and conditions which the Client has consented THE DIG to contract upon its behalf. Third-Party Product Vendor terms and conditions link of PDF can be found at our website and/or SOW as applicable.
2.5 Third-Party Products. Unless otherwise stated in an SOW, all hardware, software, peripherals, or accessories purchased through THE DIG (“Third-Party Products”) are nonrefundable once the applicable SOW is placed in our queue for delivery. THE DIG will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to the Client but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and THE DIG will not be held liable as an insurer or guarantor of the performance, uptime, or usefulness of any Third-Party Products.
2.6 Third-Party Support. If in THE DIG’s discretion, a hardware or software issue requires vendor or Original Equipment Manufacturer (OEM) support, THE DIG may contact the vendor or OEM (as applicable) on the Client’s behalf and pass through to the Client all fees and costs incurred for such third-party support. If such fees or costs are anticipated in advance or exceed $100, THE DIG will obtain Client permission before incurring such expenses on Client’s behalf unless exigent circumstances require otherwise.
2.7 Third-Party Warranty & Remedies. THE DIG does not warrant the quality, performance, or any other aspect of the Third-Party Products and Services. In the event of a defect or difficulty in the use of the Third-Party Products and Services, the Client shall look solely to the warranty or remedies (if any) provided for in the applicable Third-Party Agreements, and in this regard, THE DIG agrees to act as a liaison, provide relevant information and documentation, and otherwise provide the Client with commercially reasonable assistance in obtaining the benefit of any warranty or remedies offered by the Third-Party Vendor or Third-Party Service Provider. If THE DIG is party to a wholesale, reseller, or other agreement with the Third-Party Vendor or Third-Party Service Provider, then THE DIG will similarly make commercially reasonable efforts to obtain for the Client the benefit of any warranty or remedies provided for thereunder. The provisions of this section shall not be interpreted to require THE DIG to bring a lawsuit, commence arbitration proceedings or take any similar action against a Third-Party Vendor or Third-Party Service Provider; nor to require THE DIG to provide the Client with any remedy greater in amount or extent than any remedy provided to THE DIG by the Third-Party Vendor or Service Provider.
2.8 Subcontractors. “Subcontractors” means a third-party to whom THE DIG contracts to provide specified services to complete the services indicated in the applicable SOW and may include, but it not limited to, Third-Party Vendors and Third-Party Service Providers.
2.9 Conditions of Service. The Client’s System is eligible for the provision of THE DIG’s Services as outlined in the SOW or other contractual documents, provided the System is in good condition and THE DIG’s serviceability requirements and site environmental conditions are met as follows:
2.9.1 The Client shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by THE DIG’s representatives.
2.9.2 THE DIG’s representatives shall have, and the Client shall provide full access to the System to affect the necessary monitoring and/or supplemental services.
2.9.3 THE DIG reserves the right to suspend or terminate these Terms or any SOW if, in its sole discretion, conditions at the service site pose a health or safety threat to any of THE DIG’s representatives.
It is the responsibility of the Client to promptly notify THE DIG of any events/incidents that may impact the Services defined within these Terms and/or any supplemental service needs. Client's failure to provide complete and accurate information concerning the components and operations of the System, user and third-party access to the system, or any other material information that may affect THE DIG’s ability to provide the Services and assist with the security of the System shall be cause to void any warranties or other assurances provided by THE DIG in its performance of the Services and further may be cause, in THE DIG’s sole discretion, to terminate this Agreement.
All warranties and assurances of THE DIG concerning this Agreement and the Services provided hereunder shall be expressly conditioned on the Client’s compliance with recommendations and procedures provided by THE DIG. Any security exposure or other liability resulting from the Client’s failure to follow recommendations and procedures identified by THE DIG shall be cause to void any warranties or other assurances provided by THE DIG. THE DIG shall not be liable for any direct or consequential damages resulting from Client’s failure to follow recommendations and procedures identified by THE DIG.
THE DIG shall provide Services, as defined in these Terms, during THE DIG’s regular business hours unless otherwise specified in any subsequent SOW or other contract documents and in accordance with THE DIG’s IT Service policies then in effect.
The Client agrees that it will inform THE DIG prior to making any modification, installation, or service performed on the System by individuals not employed or contracted by THE DIG to assist THE DIG in providing an efficient and effective System support response. The Client will be billed the full cost, at THE DIG’s hourly rate, to remediate and restore the Systems and/or Services to a state prior to change.
Only representatives authorized by THE DIG will be eligible to access and service the Client System. Any unauthorized access or service conducted on the System without the explicit consent of THE DIG, which results in negative System performance, will not be covered by the monthly plan fee as documented in the SOW or other contract documents and will be billed according to THE DIG’s labor rates as outlined in the SOW.
THE DIG shall be obligated to provide Services only at (a) the Service Site(s) as identified in the SOW; and (b) client systems as identified, which are defined as client-covered devices in the Remote Monitoring Management (“RMM”) platform. If the Client desires to relocate, add or remove locations, they shall give appropriate notice in writing to THE DIG of their intention to relocate sixty (60) days in advance. THE DIG reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by the Client. Such rights include the right to refuse service at the relocation and/or new site.
2.10 Service Limitations. In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:
2.10.1 Cost of consumables, replacement parts, hardware, software, network upgrades, and associated services are outside the scope of this Agreement. THE DIG will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
2.10.2 Any unauthorized changes made to the System without THE DIG’s written consent which causes issues or failures to the System, are beyond the responsibility of THE DIG, and the Client will be billed the full cost to restore the System to its original state.
2.11 Onboarding Process. The Client acknowledges and agrees that THE DIG will have no responsibility for any deficiencies in the Client’s current operating systems and infrastructure until THE DIG has had a reasonable opportunity to conduct a review of the current system and to provide the Client with its recommendations, and the Client has accepted and implemented such recommendations.
2.12 Offboarding Process. In the event of termination of Services by either party, THE DIG will make reasonable accommodations to transfer the Client’s account to the Client or their new service provider or other authorized agent (the “Onboarding Provider”). The Client shall indemnify and hold harmless THE DIG, its Subcontractors and their respective directors, officers, employees, consultants, and agents for any claims or losses resulting from the activities of the Client or the Onboarding Provider during the transition period from THE DIG to the Onboarding Provider, inclusive of when the Client obtains access to all super administrator accounts of their infrastructure. The transfer will require that the Client’s account be fully paid at time of transfer inclusive of any offboarding charges.
2.13 Network Devices, Hardware, and Systems. THE DIG shall only be responsible for providing services to network devices, hardware, and systems identified by the Client and THE DIG and set forth in the agreed-upon RMM in the latest subsequent SOW. From time to time, SOW’s will be updated with new devices, hardware, or systems that have been agreed upon by the Parties. Said updated SOW shall be signed by both Parties and dated on a quarterly basis or per the request of THE DIG. THE DIG may, in its sole discretion, deny requests to add devices, hardware, or systems. The Client shall bear the responsibility to isolate and protect the System by not allowing additional devices, hardware, or system on the System unless approved by THE DIG. THE DIG shall have no responsibility for any devices, hardware or systems, or damage resulting therefrom that are added to the System without THE DIG’s approval. THE DIG shall have the right to cancel this Agreement if devices, hardware, or systems are added without its approval. If the Client obtains new devices, hardware, or systems and wishes to request THE DIG’s Services to extend to new devices, hardware, or systems, said extension shall not take effect unless and until both Parties agree in writing to a new SOW and the device is added to the RMM. Said written, signed SOW shall then become an addendum to this Agreement subject to the Terms of this Agreement and incorporated herein. THE DIG reserves the right to deny any requests for additional services and/or additional hardware/systems for any reason at their sole discretion.
2.14 Authorized Contact(s). The Client understands and agrees that THE DIG will be entitled to rely on any directions or consent provided to THE DIG by any of the Client Authorized Contacts, as indicated in an applicable SOW. If no Authorized Contact is identified in an applicable SOW, then the Client Authorized Contact will be the person(s) (i) who signed this Agreement and/or (ii) who signed the applicable SOW. If the Client desires to change the Client Authorized Contact(s), please notify THE DIG of such changes in writing, which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
2.15 Shared Administrator Credentials. If the Client shares server, network, or software application administrative credentials, THE DIG will not be held legally liable or responsible for any outages, errors, breaches, data loss, and misconfiguration since multiple administrators from different companies jeopardize the integrity of the support outlined in this Agreement.
3. CONFIDENTIALITY AND NON-DISCLOSURE.
3.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation trade secrets, proprietary information, and other information described herein.
3.2 Confidential Information of each Party shall include the terms and conditions of these Terms and all SOW’s, and/or other contract documents as well as business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes disclosed by such Party.
3.3 Confidential Information (other than Client Data) shall not include any information that:
a. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
b. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
c. is received from a third-party without breach of any obligation owed to the Disclosing Party, or
d. was independently developed by the Receiving Party.
3.4 Use of Confidential Information. Confidential Information shall include any personally identifiable information or other Controlled Unclassified Information (CUI), as defined by law, of the Client employees, customers, and Client Data or Systems. The Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996, and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. The Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, the Client hereby agrees to defend, indemnify and hold harmless THE DIG and any affiliated company, and THE DIG’s respective present and former shareholders, officers, directors and employees and our attorneys and agents, and our predecessors, successors, insurers, assigns, heirs, executors, and administrators (collectively referred to as the "Indemnitee"), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs, and expenses, including attorneys' fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of the Client to comply with these Terms in the proper handling of protected health information not caused by THE DIG’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify THE DIG of the necessity of same. While THE DIG will only have access to encrypted data, including any protected health information authorized by the Client, the Client shall have the sole responsibility for preparing and providing a BAA if the Client, in its sole discretion, deems the use of a BAA necessary and appropriate.
3.5 Protection of Confidential Information. The Receiving Party shall:
a. protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,
b. not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement or otherwise in any manner to the Disclosing Party’s detriment, and
c. except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors, and agents who need such access for purposes consistent with this Agreement.
3.6 Non-disclosure. Neither Party shall disclose these Terms or any SOW and/or other contract documents to any third-party other than its affiliates, legal counsel, regulatory requirements, and accountants without the other Party’s prior written consent.
3.7 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
3.8 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody, or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy. In the event that the return or destruction of Confidential Information is unduly burdensome or not feasible, the Parties shall extend the protection of these Terms to the retained Confidential Information.
4. PROVISION OF MATERIALS AND SERVICES TO THE DIG. The Client agrees to timely furnish, at the Client’s own expense, all personnel, all necessary computer hardware, software, and related materials and appropriate and safe workspaces for purposes of THE DIG or its Subcontractors performing the Services. The Client will also provide THE DIG or its Subcontractors with access to all information, passwords, and facilities requested by THE DIG that is necessary for THE DIG or its Subcontractors to perform the Services. Access may be denied for any reason at any time; however, if access to information, passwords, or facilities is denied, the Client understands that THE DIG or its Subcontractors may be unable to perform their duties adequately. and if such a situation should exist, the Client will hold THE DIG harmless for any delays in providing Services or other consequences of such denial of access.
5. RESPONSIBILITY FOR EQUIPMENT. The Client acknowledges that from time to time, (a) THE DIG may identify additional items that need to be purchased by the Client, and (b) changes in the Client system may be required for THE DIG to meet Client requirements. In connection therewith, the Client agrees to work in good faith with THE DIG to effectuate such purchases or changes, and such changes shall be set forth in a new SOW. If THE DIG is required to purchase any assets, including computer hardware and/or software, in connection with THE DIG providing the Services, all such assets will remain the sole property of THE DIG, except those assets sold by THE DIG to the Client or procured by THE DIG on the Client’s behalf shall be the sole property of the Client. The Client will take such reasonable precautions to ensure the quality, completeness, and workmanship of any item or equipment, or hardware furnished by the Client and ensure that the materials provided to THE DIG or its Subcontractors do not infringe or violate the rights of any third-party. Unless otherwise specified in the SOW and/or other contract documents that it is not the intent, nor does THE DIG provide any type of backup of Client data. The Client will maintain adequate backup for all data and other items furnished to THE DIG.
It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that cause damage to THE DIG’s products or services, and THE DIG disclaims all responsibility for any loss, including data.
6. CLIENT DATA OWNERSHIP AND RESPONSIBILITY. The Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information, or material proprietary submitted by the Client to THE DIG.
7. INTELLECTUAL PROPERTY. THE DIG retains all intellectual property rights of any property invented or composed in the course of, or incident to the performance of this Agreement, as well as any software, processes, applications, techniques, materials, or methods created prior to or after the conclusion of any work (“Intellectual Property”). The Client acquires no right or interest in any such intellectual property by virtue of this Agreement or the work performed under this Agreement.
7.1 The Client may only use and disclose Intellectual Property in accordance with the terms of this Agreement and applicable SOW and/or other contract documents. THE DIG reserves all rights in and to Intellectual Property not expressly granted in this Agreement. The Client may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Intellectual Property, without THE DIG’s prior written approval. Except as expressly authorized in these Terms or an SOW and/or other contract documents, the Client may not (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense, or other transfer), or (b) operate the Intellectual Property in outsourcing or THE DIG business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Intellectual Property - applicable installation instructions, or release notes will contain the relevant details.
8. LICENSE AGREEMENTS.
a. License. Subject to these Terms, THE DIG grants the Client a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for the Client’s own internal use. At all times, all software on the System must be genuine and licensed, and the Client agrees to provide THE DIG with proof of such licensing upon its request. If THE DIG requires the Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), the Client agrees to do so as an ongoing requirement of THE DIG providing its Services to the Client.
b. Software Installation or Replication. If THE DIG is required to install or replicate the Client software as part of the Services, the Client will independently verify that all such software is properly licensed. The Client’s act of providing any software to THE DIG will be deemed affirmative acknowledgment to THE DIG that the Client has a valid license that permits THE DIG to perform the Services related thereto. In addition, the Client will retain the duty and obligation to monitor the Client equipment for the installation of unlicensed software unless THE DIG in a written statement of work (“SOW”) expressly agrees to conduct such monitoring. The Client will indemnify and hold harmless THE DIG against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to the Client providing infringing materials to THE DIG or any Client breach of this Section.
c. Pre-Existing License Agreements. Any software product provided to Client by THE DIG as a reseller for a third-party, which is licensed to Client under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
d. EULA. Portions of the Services may require the Client to accept the terms of one or more third-party end-user license agreements (“EULAs”). If the acceptance of a EULA is required to provide the Services to the Client, then the Client hereby grants THE DIG permission to accept the EULA on the Client’s behalf. EULAs may contain service levels, warranties, and/or liability limitations that are different than those contained in these Terms. The Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, THE DIG is required to comply with a third-party EULA and the third-party EULA is modified or amended, THE DIG reserves the right to modify or amend any applicable SOW with the Client to ensure its continued compliance with the terms of the third-party EULA. The Client agrees to hold harmless and Indemnify THE DIG against the Client’s violation of any of the terms and conditions included in the subject EULA.
9. THE DIG’S EMPLOYEES, AGENTS, OR SUBCONTRACTORS. The Client acknowledges that THE DIG has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors, and independent subcontractors. From the Effective Date of the last SOW and for one (1) calendar year after the date of termination of any SOW, the Client shall not hire or contract directly or indirectly with any of THE DIG’s employees, agents, or Subcontractors who have communicated with and/or worked on any Service for the Client. The Client and THE DIG mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by the Client of this provision. Therefore, the Client and THE DIG mutually agree that in the event of a breach by the Client in any way of this provision, the Client shall pay THE DIG as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00). This amount is an effort by both Parties to properly and reasonably assess the damages that THE DIG would suffer as a direct result of a breach by the Client, taking into account the following facts and circumstances: (a) an average employee working for THE DIG will generate significant net revenue for THE DIG and remain employed by THE DIG for an extended period of time; (b) THE DIG will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to THE DIG upon such breach is virtually impossible. Considering these circumstances, the Client and THE DIG mutually agree that these liquidated damages provisions represent reasonable compensation to THE DIG for the losses that it would incur due to any such breach. The Client and THE DIG further acknowledge and agree that nothing in this paragraph shall limit THE DIG’s rights to obtain injunctive relief or any other damages including, but not limited to punitive, consequential, special, or any other damages, as may be appropriate in connection with the Client breach of this section.
10. WARRANTY. THE DIG warrants that it or its Subcontractors will perform the services substantially in accordance with the specifications set forth whether under these Terms, SOW, and/or other contract documents or otherwise in connection with any of them. For any breach of the foregoing warranty, THE DIG or its contracted Subcontractors will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of the Client’s written notice to THE DIG specifying in reasonable detail such non-conformance. If THE DIG concludes that conformance is impracticable, then THE DIG will refund all fees paid by the Client to THE DIG hereunder, if any, allocable to such nonconforming Services.
Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by THE DIG product shall be deemed null and void if the applicable product is (i) altered, modified, or repaired by persons other than THE DIG, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by THE DIG (ii) misused, abused, or not operated in accordance with the specifications of THE DIG or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than THE DIG or persons approved or designated by THE DIG.
Notwithstanding the above, THE DIG does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. THE DIG does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery, or performance.
11. SOFTWARE HARDWARE & SECURITY. The Client understands and agrees that data loss or network failures may occur, whether or not foreseeable. To reduce the likelihood of a network failure, the Client must maintain proper security for their System, including software and hardware updates that are made available by the manufacturer. The Client will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth by their specific industry and the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework.
12. REGULATORY COMPLIANCE. Any software or service provided by THE DIG is not intended to bring the Client into full regulatory compliance with any law, rule, regulation, National Standard, or requirement. The software, service, or solutions may aid the Client’s efforts to achieve regulatory compliance, however, THE DIG does not provide comprehensive compliance solutions unless otherwise stated in the SOW.
13. UNAUTHORIZED INFORMATION TRANSFER. In no event, including the willful misconduct or gross negligence on its part, shall THE DIG or its Subcontractors, whether under these Terms, a SOW, a Work Order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach or other form of cyberattack, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Client's data or Systems are breached because of the distribution of and the Client’s response to, unsolicited email, direct mail, facsimiles, unsolicited text messages, voice calls, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
14. EXTRAORDINARY EVENTS. In no event shall THE DIG or its Subcontractors, whether under these Terms, an SOW, other work order, or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty, or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of a cyberattack or any other event not contemplated by this Agreement.
15. ILLEGAL ACTIVITY. In the event THE DIG discovers or is made aware of content or actions that is unlawful under any federal or state law or regulation, THE DIG shall have no liability to the Client for disclosing such information to an appropriate law enforcement agency so long as such disclosure is made in good faith based on the information available to THE DIG. THE DIG may, but is not obligated to, first provide notice to the Client of the discovery of unlawful content or actions by the Client or its employees or agents.
16. RELEASE WITH LIMITATION OF LIABILITY. This paragraph limits the liabilities arising under these terms or any SOW and is a bargained-for and material part of these terms. The Client acknowledges and agrees that THE DIG would not enter into this Agreement unless it could rely on the limitations described in this paragraph. Except for THE DIG’s fraud, willful misconduct, or gross negligence, the Client and any of the client affiliates and each of their respective agencies, employees, officers, directors, members, shareholders, nominees, consultants, successors, and assigns (collectively, the “releasor parties”) agrees to the fullest extent permitted by law and except as otherwise noted in these terms, agrees to release THE DIG and any of their affiliates and each of their respective agencies, employees, officers, directors, members, employees, shareholders, nominees, consultants, subcontractors, successors and assigns (collectively, the “Released Parties”) for special, incidental, indirect, punitive or consequential damages loss of goodwill, productivity or business profits, work stoppage, data loss, computer failure or malfunction, any and all other commercial damages or loss, or exemplary or punitive damages. THE DIG’s aggregate liability relating to any of the services shall be quantified in the SOW or other contract documents or Terms. THE DIG shall not be liable to the Client for any delay in delivery or performance or failure to deliver or perform at or within the deadlines set forth in these terms.
17. MUTUAL INDEMNIFICATION AND HOLD HARMLESS. Each party agrees to the fullest extent permitted by law shall at all times defend, indemnify, pay, save and hold the other parties and any of their affiliates and each of their respective agencies, employees, officers, directors, members, shareholders, nominees, subcontractors, consultants, successors and assigns (collectively, the “mutually indemnified parties”) harmless from each and any and all liabilities, damages (including, without limitation, direct, special and consequential damages), costs, expenses, suits, civil or alternative dispute resolution proceeding, losses, claims, actions, violations, fines and penalties (including without limitation, court costs, reasonable attorney’s fees and any other reasonable costs of litigation) (hereinafter collectively, the “claims”) that any of the mutually indemnified parties may suffer, sustain or incur to the extent caused by the negligence of the mutually indemnified parties arising out of these Terms.
THE DIG shall not be liable for any issues related to the performance, operation, or security of the Services that arise from content, modifications, or products and services obtained by the Client other than through THE DIG. Without limiting the foregoing, THE DIG shall not be liable for any kind of unauthorized access or other harm that may be caused by the Client’s access to websites or use of application programming interfaces or other computer code available from outside sources, including without limitation harm resulting from the execution or transmission of malicious code or similar occurrences, such as disabling devices, drop dead devices, time bombs, logic bombs, trap doors, trojan horses, worms, viruses, hackers, phishers, crypto-lockers, ransomware, and similar mechanisms.
The preceding indemnification obligations are conditioned on any of the indemnified parties: (i) promptly notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
18. THE DIG INSURANCE. THE DIG agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law. Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by the following insurance policies, THE DIG will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
19. CLIENT INSURANCE.
19.1 Commercial Property Insurance. The Client shall secure at the Client’s own cost and expense Property Insurance for Client equipment that is part of the provisions of the service agreement.
19.2 Cyber Insurance. The Client acknowledges that they are solely responsible for obtaining and maintaining, for the duration of this Agreement, its own Cyber Liability Insurance to adequately insure its cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine the Client’s specific coverage and policy limit requirements. The Client acknowledges that THE DIG does not provide the Client with any form of Cyber Liability or other insurance coverage in connection with the Services or an executed SOW and that the Client’s use of the Services does not, in any way: (i) replace a Cyber Liability policy, (ii) mitigate the Client’s need for Cyber Liability insurance coverage or (iii) relieve the Client’s responsibility for obtaining its own Cyber Liability Insurance coverage.
19.3 Mutual Waiver of Subrogation. To the extent permitted by law, each party waives all rights against the other for recovery of damages to the extent these damages are covered by the workers’ compensation (to the extent permitted by law) and employers’ liability, professional liability, general liability, property insurance, commercial umbrella/excess, cyber or other commercial liability insurance obtained by either party. The Client will not hold THE DIG, its subcontractors, and/or third-party service providers responsible for such losses and will confirm that the Client insurance policies referenced above provide for the waiver of subrogation included in the terms of service.
20. DISCLAIMERS. The express remedies set forth in these Terms will constitute the Client’s exclusive remedies, and THE DIG’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
EXCEPT FOR THE WARRANTIES MADE BY THE DIG IN SECTION 10, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO THE CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” THE DIG DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
THE DIG DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY OF THE CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT THE CLIENT MAY SELECT FOR USE THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO THE CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any THE DIG employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever.
21. SEVERABILITY. If any provision of these Terms is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed to be valid, operative, and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms shall not render invalid the remainder of the Terms.
22. AMENDMENT. These Terms may not be amended except by a writing executed by an authorized individual of THE DIG.
23. RELATIONSHIP. The Parties are independent parties, and these Terms do not make the Parties principal and agent, partners, employer, and employee; nor does it create a joint venture. It is further understood that there is no relationship, including but not limited to a partnership, joint venture, subcontractor, or other commission-based relationship, between any party that referred THE DIG or the Client to the other party to these Terms.
24. LAW. These Terms shall be governed by and construed in accordance with the laws of the State of Montana without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Montana.
25. WAIVER. Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies or a waiver by it of any subsequent default by the other Party.
26. FORCE MAJEURE. Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware solution, or if such loss, delay or failure to perform was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic, or other physical event and civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
27. DATA ACCESS/STORAGE. Depending on the Service provided, a portion of the Client data may occasionally be accessed or stored on secure servers located outside of the United States. The Client agrees to notify THE DIG if the Client company requires THE DIG to modify its standard access or storage procedures.
28. ASSIGNMENT. Client may not assign the Client rights or obligations under these Terms without THE DIG’s prior written consent, which shall not be unreasonably withheld.