Master Service Agreement
This Master Services Agreement (this “Agreement”) is between Entech Computer Services, LLC (“us”, “our”, “we” or “Entech”), and you, the entity that signs one or more SOWs to receive Services from us (“you”, “your” or “Client”). This Agreement will be effective as of the date you and we sign the first SOW for Services (“Effective Date”).
1) SCOPE OF SERVICES; SOW.
This Agreement governs all of the services that we perform for you (collectively, the “Services”). The Services will be described in one or more statements of work that we provide to you (each, a “SOW”), and once you and we mutually agree to a SOW (either by signing it or by electronic acceptance), the SOW will become a part of, and governed under, the terms of this Agreement. If there is a material difference or conflict between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability or termination of this Agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement. SOWs, and all references thereto, shall be deemed to include and incorporate all additional terms and conditions that are referenced in such SOWs. Services are performed on a non-exclusive basis and you acknowledge that the same or similar services may be performed by Entech for third parties.
2) GENERAL REQUIREMENTS.
- System Configuration. For the purposes of this Agreement, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored or operated by Entech pursuant to this Agreement. Our fees are based upon the configuration of your System as of the effective date of the applicable SOW. If the System configuration changes, then we may adjust the scope of services and/or the fees charged to you under the applicable SOW to accommodate those changes.
- Requirements. At all times, all software on the System must be genuine and licensed, and you agree to provide us with proof of such licensing upon our request. If we require you to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), you agree to do so as an ongoing requirement of Entech providing its Services to you.
- Maintenance; Updates. If patches and other software-related maintenance updates that are produced and distributed by the manufacturers of software and/or hardware devices (“Updates”) are to be provided by Entech under a SOW, Entech will install the Updates only if Entech has determined, in its reasonable discretion, that the Updates will be compatible with the particular configuration of the System. Entech 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’s or applicable vendor’s instructions.
- Third Party Support. If, in Entech’s sole discretion, a hardware or software issue requires vendor or OEM support, Entech may contact the vendor or OEM (as applicable) on your behalf and pass through to you, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $75, Entech will obtain your permission before incurring such expenses on your behalf. In the event Entech makes such recommendations and you choose not to follow them, you shall hold Entech harmless from any and all resulting liability or damages.
- Insurance. If you are supplied with Entech Equipment, you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. Entech shall be listed as an additional insured on any policy acquired and maintained by you hereunder, and the policy shall not be canceled or modified without prior notification to Entech. Upon Entech’s request, you agree to provide proof of insurance to Entech, including proof of payment of any applicable premiums or other amounts due thereunder. You agree to cover any and all costs for repair or replacement of Entech Equipment that are not covered by such insurance.
- Advice; Instructions. We are being retained to provide you with our professional IT advice. To that end, we may provide you with specific advice related to our provision of the Services or the maintenance, administration, configuration, security, data retention and availability or lifecycle management of the System(s). If any written advice or recommendations are not followed or implemented by you in a reasonably timely manner or in the timeframe that we recommend, we cannot be responsible for issues that arise as a result of your failure to do so. Any services required to diagnose or fix issues caused by your failure to follow our advice, as well as any services required to bring the System up to the Minimum Requirements, are out-of-scope and, once we get your consent to do so, will be remediated and billed to you at Entech’s then-current hourly rates. Entech shall not be liable for any failure to follow Entech’s advice or recommendations, whatever the reason, and you shall indemnify and hold Entech harmless for any resulting liability or damages to Entech.
- Prioritization. Unless otherwise stated in a SOW, all Services will be performed on a schedule, and in a prioritized basis, as determined by Entech and Client.
- Authorized Contact(s). You understand and agree that Entech will be entitled to rely on any directions or consent provided to Entech by any of your Authorized Contacts, as indicated in an applicable SOW. If no Authorized Contact is identified in an applicable SOW, then your Authorized Contact will be the person(s) who signed the applicable SOW. If you desire to change your Authorized Contact(s), please notify Entech of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
3) FEES; PAYMENT.
You agree to pay the fees described in each SOW. If the SOW does not include a fee schedule, then you agree to pay Entech on an hourly basis pursuant to Entech’s standard hourly rate schedule, which will be provided to you prior to the commencement of Services. The prices set forth in a SOW for the Services described will remain in effect for the first twelve (12) months of the term of this SOW. Thereafter, at the start of each consecutive agreement year, Entech reserves the right, but not the obligation, to increase the monthly fee for the Services up to five percent (5%), at Entech’s discretion. The fee increase will be reflected on the next invoice and without a formal written notice to you.
a) Payment Methods. Unless alternate terms are approved by Entech’s finance department, you agree to maintain an up-to-date pre-authorized method of payment inside Entech’s online payment portal. All agreement invoices are automatically paid on the invoice’s due date by your pre-authorized method of payment selected inside Entech’s online payment portal. If you wish to pay through an alternate payment method, it must be received at least one day prior to the due date; otherwise, the method inside the online payment portal will automatically run. Entech reserves the right to charge a 5% collections premium on each invoice where an up-to-date, pre-authorized method of payment is not maintained and active insider Entech’s online payment portal. Any payment received in the form of a physical check will be processed electronically via ACH.
b) Nonpayment. Fees that remain unpaid for more than five (5) days after the due date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. Entech reserves the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely received by Entech. All disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on which you receive an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. A re-connect fee may be charged to you in the event that Entech suspends the Services due to your nonpayment. Time is of the essence in the performance of all payment obligations by you.
c) Early Termination. In the event of such early termination, Client shall pay to Entech, prior to the effective date of such termination, an amount equal to (i) all expenses incurred by Entech in its preparation and provision of the Services to Client (e.g., licensing fees incurred by Entech, non-mitigable hard costs, etc.), plus (ii) fees for any and all Services provided by Entech up through the effective date of such termination.
4) ACCESS.
You hereby grant to Entech the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System for the purpose of enabling Entech to provide the Services, and to review your use thereof. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permissions necessary for Entech to provide Services to the System and, if applicable, at your designated premises. You agree to respond promptly to any Entech request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Entech to perform the Services in accordance with this Agreement and the SOWs, and provide such information as Entech may reasonably request in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects.
5) LIMITED WARRANTIES; LIMITATIONS OF LIABILITY.
a) Hardware / Software Purchased Through Entech. Unless otherwise stated in a SOW, all hardware, software, peripherals or accessories purchased through Entech (“Third Party Products”) are nonrefundable once the applicable purchase order is placed in Entech’s queue for delivery. We 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 you, but will have no liability whatsoever for the quality, functionality or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. Unless otherwise expressly stated in a SOW, all Third Party Products are provided “as is” and without any warranty whatsoever as between Entech and you (including but not limited to implied warranties).
b) Warranty Application. Notwithstanding any provision to the contrary in this Agreement, any warranty provided by Entech shall be deemed null and void if the applicable hardware or product is (i) altered, modified or repaired by persons other than Entech, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Entech; (ii) misused, abused, or not operated in accordance with the specifications of Entech or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than Entech or persons approved or designated by Entech. Except for any express written warranties in this Agreement or a SOW, Entech does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, noninfringement, uptime, availability and any warranties arising from course of dealing, usage or trade practice.
c) Liability Limitations. This paragraph limits the liabilities arising under this Agreement or any SOW, and is a bargained-for and material part of this Agreement. In no event shall either party be liable for any indirect, special, exemplary, consequential or punitive damages, or for lost revenue, loss of profits (except for fees due and owing to Entech), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has been advised of the possibility of such damages. Except for your payment obligations and your indemnification obligations described in this Agreement, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you to Entech for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued. The foregoing limitation shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
6) INDEMNIFICATION.
Each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement, or which relate to any act or omission undertaken or caused by the Indemnifying Party. The foregoing indemnification obligation includes Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services. The Indemnifying Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section; provided, however, the Indemnifying Party shall not settle any claim for which indemnity is sought hereunder without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld.
7) TERM; TERMINATION.
This Agreement will begin as of the latest date of the signatures of the parties below, and will continue until terminated as described in this Section (the “Term”). The termination of one SOW shall not, by itself, cause the termination of (or otherwise impact) the status or progress of any other SOW between the parties or terminate this Agreement. The method to deliver a notice of termination is described in Section 12(p) of this Agreement. Each SOW will commence as stated in such SOW, and after the expiration of the initial term of an SOW, an SOW will automatically renew for contiguous one (1) year terms unless either party notifies the other of its intention to not renew an SOW in writing no less than sixty (60) days before the end of the then-current term.
a) Termination Without Cause. Unless otherwise agreed by the parties in a SOW, except as set forth in Section 7(b), and except for non-renewal above, you may not terminate a SOW prior to the SOW’s natural term expiration date.
b) Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within thirty (30) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If you or Entech terminate this Agreement or a SOW For Cause, then you will be responsible for paying only for those Services that were delivered up to the effective date of termination. Notwithstanding the foregoing, the failure of Entech to correct or replace hardware devices and/or software programs that were not provided by Entech (collectively, “Third-Party Products”), the delayed timeframe by suppliers of replacement hardware devices/components and/or software programs that are delayed through no fault of Entech, and/or any delays in, or failure of, performance by Entech directly or indirectly arising from or related to the negligence or intentional misconduct of Client shall not give rise to a right for Client to terminate this Agreement For Cause.
c) Client Activity As A Basis for Termination. Notwithstanding any provision to the contrary, in the event that any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the System or any part of the System to malfunction or requires remediation by Entech on three (3) occasions or more (“System Malfunction”), and you fail to remedy, repair or replace the System Malfunction as directed by Entech (or you fail to cease the activity causing the System Malfunction, as applicable), then Entech will have the right, upon ten (10) days prior written notice to you, to terminate this Agreement or the applicable SOW For Cause or, at Entech’s discretion, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.
d) Consent. You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time.
e) Equipment / Software Removal. Upon termination of this Agreement for any reason, you will provide Entech with access, during normal business hours, to your premises or any other locations at which Entech-owned equipment or software (collectively, “Entech Equipment”) is located to enable Entech to remove all Entech Equipment from the premises. If you fail or refuse to grant Entech access as described herein, or if any of the Entech Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Entech-supplied software is missing, Entech will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
f) Transition; Deletion of Data. Deletion of Data. In the event that you request Entech’s assistance to transition to a new service provider, Entech will provide such assistance if (i) all fees due and owing to Entech are paid to Entech in full prior to Entech providing its assistance to you, and (ii) you agree to pay Entech its then-current hourly rate for such assistance, with up-front amounts to be paid to Entech as may be required by Entech. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly stated in a SOW, Entech will have no obligation to store or maintain any Client data in Entech’s possession or control beyond fifteen (15) calendar days following the termination of any SOW or this Agreement. Entech will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Entech’s deletion of your data beyond the time frames described in this Section 7(f).
8) CONFIDENTIALITY.
a) Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided to Entech by you, including but not limited to your customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of Entech, (ii) was developed independently by Entech, or (iii) is or was lawfully and independently provided to Entech prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
b) Use. Entech will keep your Confidential Information confidential, and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill Entech’s obligations under this Agreement. If Entech is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then Entech will direct such third party, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 8.
c) Due Care. Entech will exercise the same degree of care with respect to the Confidential Information it receives from you as Entech normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
d) Compelled Disclosure. If Entech is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Entech will promptly notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive Entech’s compliance with the provisions of this Section 8. Entech will use its best efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Entech may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Entech has been advised by written opinion of counsel reasonably acceptable to Entech that it is legally compelled to disclose.
9) THIRD PARTY SERVICES.
a) EULAs. Portions of the Services may require you to accept the terms of one or more third party end user license agreements (“EULAs”). EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree 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, Entech is required to comply with a third party EULA and the third party EULA is modified or amended, Entech reserves the right to modify or amend any applicable SOW with you to ensure Entech’s continued compliance with the terms of the third party EULA.
b) Data Loss. If backup and/or disaster recovery services are to be provided under a SOW, then you hereby understand and agree that Entech will not be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), (iii) Entech’s failure to backup or secure data from portions of the System that were not expressly designated in the applicable SOW as requiring backup or recovery services, or (iv) errors or actions of your employees, agents, or contractors leading to the encryption or corruption of data from malware or a cyber event.
c) BYOD. You hereby represent and warrant that Entech is authorized to provide the Services to all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that (i) are connected to the System, and (ii) have been designated by you to receive the Services, regardless of whether such device(s) are owned, leased or otherwise controlled by you. Unless otherwise stated in a SOW, devices will not receive or benefit from the Services while the devices are detached from or unconnected to the System.
10) OWNERSHIP.
Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights in one party’s Intellectual Property to the other party.
11) ARBITRATION.
You and Entech agree that any claim or dispute between us shall be resolved by arbitration administered by the Forum under the Code of Procedure for Resolving Business-to-Business Disputes in effect when the claim is filed. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction. The arbitration shall be heard by a single arbitrator, to be selected by the parties and experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the Forum shall select the arbitrator. The arbitration shall take place in the venue described in Section 12, below. The arbitrator shall determine the scope of discovery in the matter, however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.
12) MISCELLANEOUS.
a) Assignment. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Neither party may assign this Agreement or any SOW, except that either party may assign its rights and obligations hereunder (and under all then-effective SOWs) to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of a party, or any other transaction in which ownership of more than fifty percent (50%) of either party's voting securities is transferred; provided such assignee expressly assumes the assignor’s obligations hereunder (and under all then-effective SOWs).
b) Amendment and Application. Entech may amend or modify this Agreement in its sole discretion, at any time, upon written notice to Client (which notice may be provided in any invoice provided to Client), and such amendment or modification shall become effective fifteen (15) calendar days following such notice. This Agreement, and any subsequent amendment or modification, shall supersede any and all previous Agreements of the same nature between the parties; provided that in the event of amendment or modification of this Agreement, all then-effective SOWs and terms and conditions shall remain in place subject to any amended or modified terms herein.
c) Time Limitations. The parties mutually agree that any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
d) Severability. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
e) Other Terms. Entech will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into a duly executed SOW.
f) No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
g) Merger. This Agreement, together with any and all SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or SOW will act only to provide illustrations or descriptions of Services to be provided, and will not act to modify this Agreement or provide binding contractual language between the parties. Entech will not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
h) Force Majeure. Entech will not be liable to you for delays or failures to perform Entech’s obligations under this Agreement or any SOW because of circumstances beyond Entech’s reasonable control. Such circumstances include, but will not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, 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 software, epidemic, pandemic, and acts of God.
i) Non-Solicitation. You acknowledge and agree that during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Entech’s employees, former employees or subcontractors to discontinue or reduce the scope of their business relationship with Entech, or recruit, solicit or otherwise influence any employee, former employee or subcontractor of Entech to discontinue such employment or contractor relationship with Entech. In the event that you violate the terms of the restrictive covenants in this Section 12(i), you acknowledge and agree that the damages to Entech would be difficult or impracticable to determine, and you agree that in such event, you will pay Entech a Recruitment Fee as liquidated damages and not as a penalty an amount equal to seventy percent (70%) percent of that employee, former employee or subcontractor’s annual compensation with Entech (including salary and expected bonuses) at the time of breach or at the time of their termination from Entech, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to any of Entech’s employees by you will be deemed to be a material breach of this Agreement, in which event Entech shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
j) Survival. The provisions contained in this Agreement or any SOW that by their context are intended to survive termination or expiration of this Agreement will survive.
k) Insurance. Entech and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability. Entech agrees to maintain a general liability policy with a limit not less than $1,000,000 per occurrence.
l) Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of Florida. You hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Lee County, Florida, for any and all claims and causes of action arising from or related to this Agreement. YOU AND WE AGREE THAT EACH OF US WAIVES ANY RIGHT TO A TRIAL BY JURY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, ANY SOW, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
m) No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
n) Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
o) Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Lee County, Florida, such period will be extended to and through the next succeeding business day in Lee County, Florida.
p) Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) business day following delivery when sent by FedEx or other overnight courier, or one (1) business day after notice is delivered by fax or email, with confirmation of transmission. Messages or statements by you contained in the “comments” or other sections of any customer service or trouble ticket shall not be “notice” for the purposes of this Agreement. Notwithstanding the foregoing, any notice from you to Entech regarding (a) any alleged breach of this Agreement by Entech, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to Entech either by U.S. mail, email or fax, unless such requirement is expressly and specifically waived in writing by Entech, and this notice sent by email will be sufficient only if (i) it is a stand-alone email with an appropriate subject line that denotes the reason for the Notice, and is sent with confirmation of transmission, (ii) you email the notice to the last known email address of Entech’s support team, and (iii) you include yourself in the “cc” portion of the email and preserve the email until such time that it is acknowledged by Entech. All electronic documents and communications between the parties will satisfy any “writing” requirement under this Agreement; provided any such electronic communication is sent by an authorized contact or officer of such party.
q) Independent Contractor. Each party is an independent contractor of the other, and neither is an employee, partner or joint venturer of the other.
r) Subcontractors. Generally, Entech does not utilize subcontractors; however, should Entech elect to subcontract a portion of the Services, Entech shall be responsible for all work performed by any Entech-designated subcontractor as if Entech performed the subcontracted work itself.
s) Data Access/Storage. Depending on the Service provided, a portion of your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify us in the event that your company requires us to modify our standard access or storage procedures.
t) Attorneys’ Fees. If a party is required to bring an action to enforce the terms of this Agreement, then the prevailing party will be entitled to an award of the reasonable attorneys’ fees and costs that it incurred at all stages of the action, including without limitation, at trial and appeal.
u) Counterparts. The parties may electronically sign and deliver any SOW in any number of counterparts, each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign and deliver any SOW electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party will be entitled to rely upon the apparent integrity and authenticity of the other party’s acceptance or, as applicable, e-signature, for all purposes.
Last revised May 5, 2024