Terms of Service
Last modified: May 22, 2020
These Terms of Service (the “Agreement”) available at https://www.watech.com/termsofservice govern the provision of products and services by WaTech Computer Services, Inc. (“WaTech”), a Michigan corporation, to Customer (hereinafter “Customer”) (each a “party” and collectively, the “parties”). By engaging WaTech for services or otherwise accepting products and services provided by WaTech, Customer agrees to be bound by this Agreement.
- Scope. The scope of this Agreement is a “master” agreement and encompasses any and all products and services provided by WaTech to Customer during the term of this Agreement.
- Order Form. During the term of this Agreement, WaTech may provide products and services pursuant to an Order Form (“Order”) describing the products and services to be provided (including any service-level details). An Order shall be valid and enforceable under the terms of this Agreement upon being accepted by the parties and, upon its acceptance, shall be incorporated into this Agreement.
- Change Orders. During the term of this Agreement, if the parties desire to make changes to an existing Order, they may issue a Change Order. A Change Order shall be valid and enforceable under the terms of this Agreement upon being accepted by the parties and, upon its acceptance, shall be incorporated into this Agreement.
- Estimates. Any estimate or quotation provided by WaTech, whether made orally or in writing, is provided strictly for budgetary purposes only. WaTech reserves the right to modify any estimate or quotation as it deems necessary up and until the time of delivery.
- Professional Services. Professional Services provided under this Agreement will be billed on a time and material basis at WaTech’s then applicable hourly rates for such services. WaTech reserves the right to add a reasonable markup to any material supplied.
- Joint Efforts. Customer acknowledges that WaTech’s ability to perform its obligations is contingent upon Customer’s cooperation, which may include Customer supplying certain access, information, specifications, feedback, and other items as WaTech may reasonably determine. Customer hereby agrees to provide such cooperation in a timely manner upon WaTech’s reasonable request.
- Service Start Date. The expected start date for any service to be provided by WaTech may be subject to the satisfaction of certain prerequisites, including, but not limited to, the receipt of any required materials, information, or payments, and the completion of any site preparation and necessary installations. Regardless of any specific timing or delivery schedules or estimates provided in an applicable Order or Change Order, Customer acknowledges that the services rendered by WaTech are of a complex nature and that occasional delays in delivery sometimes occur. Minor delays in delivery by WaTech shall not constitute a breach of this Agreement. If WaTech expects a delay in delivery to occur, WaTech will make commercially reasonable efforts to keep Customer apprised of such delay.
- Installation. WaTech shall install any products or materials that are to be installed according to its fee for such installation, if any. Dates or timelines provided for installation are only estimates and actual timing may vary. Customer is responsible for preparing and maintaining the site for installation, including providing the necessary infrastructure, including any electrical power, communication lines, HVAC, and physical security, etc. that may be needed for the particular products or services. Prior to WaTech performing any on-site services, including installation, Customer shall name WaTech as an additional insured under its general liability insurance policy. If Customer fails to do so, then Customer will be deemed to have self-insured WaTech for any such claim or liability.
- Improvements. During the term of this Agreement, WaTech may provide maintenance, updates, replacements, and upgrades (collectively, “Improvements”) to improve the performance of Customer’s IT systems. To enhance the speed and quality of such service, Customer hereby authorizes WaTech to perform such Improvements as it deems necessary in its discretion and consents to paying WaTech for any cost associated therewith, including for labor and materials, not to exceed $500.00 in any given month (not including any regular monthly charges). If the cost of any such Improvements would exceed $500.00 in a given month, WaTech will seek Customer’s approval prior to providing such Improvements.
- Acceptance of Delivery; Right to Cure. Within 30 days of the delivery of any product or service, Customer shall notify WaTech of any dissatisfaction it may have with WaTech’s performance or workmanship pertaining thereto, otherwise, Customer’s acceptance of such product or service shall be presumed and any claim(s) Customer may have concerning such matter shall be deemed discharged and waived. Within 30 days of WaTech receiving any such notice of dissatisfaction, WaTech shall have the right to (1) object to or provide an explanation concerning such dissatisfaction; (2) resolve any such dissatisfaction through as many separate attempts as may be necessary; and (3) refund some or all of Customer’s payment for such product or service to finally resolve the matter. Upon accepting any such resolution, the matter shall be deemed finally settled and Customer agrees to fully release and forever discharge WaTech from and against any and all such claims, actions, demands, rights, causes of action, and liabilities, whether in law or in equity, with respect to such matter.
- Payment Terms. Payment for recurring services shall be billed at the start of every month for the services to be provided in that month. All other payments are due within thirty (30) days of invoice (Net 30). Late payments are subject to interest charges of 1.5% per annum.
- Term; Renewal. The term of this Agreement shall be 12-months from the Effective Date and shall automatically renew on its anniversary for an additional 12-month term, after which this Agreement shall be renewed each month on a month-to-month basis until terminated according to this Agreement.
- Termination. During the initial Term and any 12-month renewal term, this Agreement may be terminated by either party for any reason upon 60-days written notice to the other party according to this Agreement. During any month-to-month term, this Agreement may be terminated by either party for any reason or no reason at all upon 30-days written notice to the other party according to this Agreement.
- Default for Nonpayment. Payments or amounts more than sixty (60) days past due shall be deemed a material breach of this Agreement and may result in the stoppage of any and all service(s) and WaTech’s enforcement of any and all rights to which WaTech may be entitled.
- Independent Contractor. The parties agree that WaTech is an independent contractor and not an employee, partner, agent, or joint venture of Customer and shall control the mode of its own work performed under this Agreement.
- Subcontracting. WaTech reserves the right to utilize subcontractors and other vendors in its sole discretion.
- Access Rights. WaTech, its employees, agents, designees, and assigns shall be permitted access to Customer’s facilities upon reasonable request for the purposes of fulfilling its obligations hereunder. However, Customer shall remain responsible for ensuring the security of its facilities and IT systems prior to, during, and following such access.
- Security Incidents. In the event of an immediate information security risk to Customer’s IT systems, Customer expressly authorizes WaTech to unilaterally take any reasonable measures in its discretion to respond to and remediate such risk without prior notice to or obtaining consent or authorization from Customer. Customer agrees to reimburse WaTech for all reasonable costs associated with responding to and remediating such risk arose as a result of Customer’s own negligence.
- Information Security. Customer shall be solely responsible for:
- Governance, risk management, and compliance (GRC)
- Information security practices, including internal controls and employee training
- Security appliances, tools, and products not specifically provided and exclusively managed by WaTech
- IT infrastructure not specifically provided and exclusively managed by WaTech
- Software and hardware not specifically provided and exclusively managed by WaTech
- Data retention and disposal policies and practices
- Compliance with local, state, federal, and foreign laws and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the EU General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), the Payment Card Industry Data Security Standard (PCI-DSS), and other compliance requirements
- Duty to Notify. Customer shall notify WaTech immediately upon (a) discovering or suspecting that it has or is presently experiencing an information security incident; and (b) the occurrence of any material changes to Customer’s IT systems including, but not limited to, changes in IT personnel, access controls, workstations and endpoints, networked equipment, network configurations, data backup or storage practices, Internet Service Provider (ISP), or any non-routine changes to software or applications.
- Assumption of Risk. Customer acknowledges that the use of information technology systems and networked devices, especially those connected to the Internet, carry inherent risks, including risks to the confidentiality, integrity, and availability of data, as well as to the disruption and loss of cyber-physical and other critical systems that can lead to loss or casualty. Customer understands that even if reasonable precautions are taken, unpredictable events including, but not limited to, cyberattacks, software and hardware faults, failures, breakage, malfunctions and misconfigurations (collectively, the “Potential Risks”) can and do occur and that despite being informed of these Potential Risks, Customer chooses to assume such risks and utilize the technologies, systems, and/or devices that may be provided hereby.
- Indemnification. Customer agrees to indemnify WaTech, its officers, directors, employees, agents vendors, contractors, associates, and assigns (each an “Indemnitee” and collectively, “Indemnitees”) and pay on demand for the defense of an Indemnitee or Indemnitees (including any costs, expenses, and attorneys’ fees) from and against any and all claims, suits, demands, liabilities, damages, losses, costs and expenses arising out of or in any way relating to this Agreement except as such may be the result of WaTech’s own gross negligence.
- Third Party Services. Customer expressly agrees to assume full responsibility for its compliance with all third-party software licenses and terms of service, including that such licenses are properly maintained and abided. WaTech hereby disclaims any and all responsibility and liability for or relating to Customer’s use of third-party software and the use of out-of-support or deprecated software and may deny or limit the provision of service for reasons relating thereto. Customer’s use of or access to any third-party products and services provided under this Agreement shall be strictly limited to and governed by any such agreements, licenses, terms of service, or the like associated with such products and services. Customer’s sole and exclusive remedy with respect to a third-party product or service shall be limited to any remedy against that third-party that may be made available by such third party and under no circumstances will Customer look to WaTech for any such remedy.
- Disclaimers. EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN, ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WATECH DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WATECH DOES NOT WARRANT THE WORK AND SERVICE PROVIDED WILL BE UNINTERRUPTED AND/OR ERROR FREE. WATECH DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING AGAINST LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF CUSTOMER, AND DO NOT EXTEND TO ANY THIRD PARTY. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT WATECH SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR OR WARRANTY OF ANY OF SOFTWARE OR HARDWARE PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY WATECH OR BY A THIRD PARTY.
WATECH HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ITS COMPLIANE WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), THE GRAMM-LEACH-BLILEY ACT (GLBA), THE EU GENERAL DATA PROTECTION REGULATION (GDPR), THE CALIFORNIA CONSUMER PRIVACY ACT (CCPA), THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (PCI-DSS), THE FEDERAL INFORMATION SECURITY MANAGEMENT ACT (FISMA), THE DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT (DFARS), THE CYBERSECURITY MATURITY MODEL CERTIFICATION, THE FBI CRIMINAL JUSTICE INFORMATION SERVICES (CJIS), THE SECURITIES AND EXCHANGE COMMISSION REUGLATION S-P RULE 30, THE SARBANES-OXLEYACT (SOX), AND ANY OTHER SIMILAR COMPLIANCE REQUIREMENT.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WATECH BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. WATECH’S TOTAL POSSIBLE LIABILITY UNDER THIS AGREEMENT WHETHER ARISING FROM CONTRACT, TORT, OR OTHERWISE, SHALL BE STRICTLY LIMITED TO DIRECT DAMAGES LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS ($5,000.00) OR THE TOTAL AMOUNT CUSTOMER HAS PAID WATECH IN SERVICE FEES IN THE PRECEDING THREE (3) BILLING CYCLES.
CUSTOMER FURTHER AGREES THAT NO TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER, SHAREHOLDER, BENEFICIARY, EMPLOYEE OR AGENT OF WATECH SHALL BE HELD TO ANY LIABILITY, JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM, DEMAND, JUDGMENT, DECREE, LIABILITY OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THIS AGREEMENT.
- No Wavier. WaTech’s failure to seek redress for a violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation.
- Confidentiality. Except as the parties may otherwise expressly agree (e.g. through a separate nondisclosure agreement), no information disclosed by Customer, either directly or indirectly, or made available or accessible to WaTech or its employees, subcontractors, agents, designees and assigns through WaTech’s access to Customer and its employees, facilities, databases, and IT systems, etc. shall be considered confidential or proprietary and Customer hereby waives and releases WaTech from any claim or liability relating thereto. Notwithstanding the foregoing and except as may be required by law or in response to a governmental demand, during the term of this Agreement, WaTech will use reasonable care to not disclose Customer’s nonpublic information to any third parties except as may be disclosed by WaTech to facilitate the provision of its services and manage and operate its business, or as may otherwise be disclosed as part of an acquisition, merger, or other corporate transaction involving WaTech.
- Intellectual Property; Licenses. Except as may be specifically provided herein, neither party shall acquire any right, title, or interest in any intellectual property of the other unless expressly agreed to in a writing signed by the parties. Customer shall give WaTech a limited, nonexclusive, fully paid, royalty-free, worldwide license to copy, modify, and distribute Customer’s supplied data (“Customer Data”) as WaTech may deem necessary in fulfilling its obligations under this Agreement. Customer agrees to assent to and be bound by any agreement, including, but not limited to, any terms of service and license agreements, of any third-party products or services provided to Customer under this Agreement.
- Non-Competition. During the term of this Agreement and for a period of 24-months thereafter, Customer shall not, anywhere in the continental United States, directly or indirectly compete with WaTech, including as an officer, director, employee, consultant, partner, joint venture, majority shareholder, individual proprietor, or private placement investor without the prior written consent of WaTech. The parties agree that money damages would be insufficient to address a violation of this provision and acknowledge and agree that WaTech shall be entitled to injunctive relief in addition to pursuing other remedies.
- Non-Solicitation. During the term of this Agreement and for a period of 24-months thereafter, Customer shall not directly or indirectly solicit, recruit, or employ any employee of WaTech without the prior written consent of WaTech. The parties agree that money damages would be insufficient to address a violation of this provision and acknowledge and agree that WaTech shall be entitled to injunctive relief in addition to pursuing other remedies.
- Notices. All notices, demands, and communications required or permitted in connection with this Agreement will be in writing and shall be deemed effectively given in all respects upon delivery to a party’s principal place of business by registered mail or by personal delivery by a party or a third-party courier or, in the alternative, if delivered by email to WaTech at firstname.lastname@example.org and to Customer at Customer’s then primary email address on file.
- Incorporation. This Agreement specifically incorporates any applicable Orders and Change Orders accepted by the parties under this Agreement.
- Force Majeur. In no event shall WaTech be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, pandemics, acts of God, and interruptions to or the loss or malfunctions of utilities, communications or computer (software or hardware) services.
- Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the state of Michigan without regard to conflict of laws principles.
- Dispute Resolution. Any dispute or disputes arising out of or relating to this Agreement (“Dispute”) shall be resolved in accordance with the following:
(a) Negotiation. Upon written notice of any Dispute, the parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute within 30 days (the “Negotiation”).
(b) Mediation. If the dispute has not been resolved by the Negotiation, then the parties shall proceed to mediation unless the parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. The parties shall agree on a mediator; however, if they cannot agree within 14 days then JAMS Detroit Resolution Center shall appoint a mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last for at least one full mediation day, before any party has the option to withdraw from the process. The parties may agree to continue the mediation process beyond one day, until there is a settlement agreement, or one party [or the mediator] states that there is no reason to continue because of an impasse that cannot be overcome and sends a “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session.
During the course of the mediation, no party can assert the failure to fully comply with the Negotiation, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. Each side shall bear an equal share of the mediation costs unless the parties agree otherwise.
All communications, both written and oral, during the Negotiation and the Mediation are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider.
(c) Arbitration. Any Dispute not resolved through Negotiation or Mediation shall be resolved by final and binding arbitration in accordance with the JAMS Arbitration Rules and Procedures. The arbitration will be held at the JAMS Detroit location using one arbitrator unless the Dispute exceeds one million dollars (USA) in which case there shall be three neutral arbitrators, as a panel. The parties understand that arbitration is final and binding and that they are waiving their rights to other resolution processes, such as court action or administrative proceeding, and their right to a jury.
If a party fails to attend or comply with the arbitration, the arbitrator will proceed with the arbitration. A party may enter an arbitration award as a judgement in any Michigan court of competent jurisdiction.
- Class Action Waiver. THE PARTIES AGREE THAT ANY DISPUTE SHALL BE RESOLVED IN EACH PARTY’S RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
Acceptable Use Policy. WaTech’s services may not be used for unlawful, fraudulent, offensive, or obscene activity, as determined solely in the discretion of WaTech. Customer will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be included in WaTech’s Acceptable Use Policy, as such policy may be updated from time-to-time in accordance with its terms.
- Survival. The expiration or termination of this Agreement shall not release Customer of its obligation to make any payments owed under this Agreement. Further, the parties agree that the indemnification provision set forth in section 22, the disclaimers set forth in section 24, and the limitation of liability provision set forth in section 25 shall survive expiration and termination of this Agreement indefinitely. Furthermore, the non-competition and non-solicitation provisions set forth in sections 29 and 30, respectively, shall each survive for their respective terms as provided in this Agreement.
- Modification. Customer acknowledges and agrees that WaTech may, in its sole discretion, modify this Agreement from time-to-time, and that modified terms become effective sixty (60) days from the date of such modification. Customer will be notified of modifications through notifications or posts on https://www.watech.com/termsofservice and/or by direct email communication. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued engagement of WaTech after the effective date of the modifications will be deemed acceptance of the modified terms.
- Assignment; Successors and Assigns; No Third-Party Beneficiaries. This Agreement may be assigned by WaTech in its sole discretion without notice. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, and assigns. There are no intended beneficiaries other than the parties hereto.
- Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect.
- Construction. Unless the context of this Agreement otherwise requires: (1) words importing the singular include the plural and vice-versa, (2) the use of all pronouns shall be interchangeable and considered gender neutral, and (3) section headings and paragraph titles in this Agreement are for convenience only and form no part of this Agreement and shall not affect its interpretation.
- Export Regulation; U.S. Government Rights.
43.1 Export Regulation. The products and services provided utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the products and services or the software or technology included in the products and services to, or make the products and services or the software or technology included in the products and services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the products and services or the software or technology included in the products and services available outside the US.
43.2 U.S. Government Rights. Each of the software components that may constitute the
products and services and Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the products and services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
- Opportunity to Review. Each party hereto acknowledges and agrees that it had sufficient time and opportunity to review and consult with legal counsel prior to executing this Agreement.
- Authority. The parties hereto represent and warrant that they are legally authorized to enter into this Agreement and that each has the full power and authority to perform this Agreement and has taken all actions required to authorize the execution and delivery of this Agreement.