TERMS & CONDITIONS
Terms and Conditions for Services
1. Applicability. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by RISETECH PARTNERS, INC. (“Risetech”) to the client identified on the face of the Client Services Agreement (“Client”). The accompanying CyberCare and/or IT Care Client Services Agreement (the “Client Services Agreement”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Client Services Agreement, these Terms shall govern unless the Client Services Agreement expressly states that the terms and conditions of the Client Services Agreement shall control. These Terms prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted its request for proposal, order or such terms. Risetech’s provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
2. Services. Risetech shall provide the services to Client as described in the Client Services Agreement (the “Services”) in accordance with these Terms.
3. Performance Dates. Risetech shall use reasonable efforts to meet any performance dates specified in the Client Services Agreement, and any such dates shall be estimates only.
4. Client’s Obligations. Client shall: (a) cooperate with Risetech in all matters relating to the Services and provide such access to Client’s premises and such office accommodation and other facilities as may reasonably be requested by Risetech, for the purposes of performing the Services; (b) respond promptly to any Risetech request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Risetech to perform Services in accordance with the requirements of this Agreement; (c) provide such Client materials or information as Risetech may request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. Client’s Acts or Omissions. If Risetech’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Risetech shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Risetech shall, within a reasonable time after such request, provide a written estimate to Client of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless such Change Order is mutually agreed upon in writing and signed by an authorized representative of each party. Notwithstanding the foregoing provisions of this Section, Risetech may from time to time change the Services without the consent of Client; provided, that such changes do not materially affect the nature or scope of the Services or the fees or any performance dates set forth in the Client Services Agreement. Risetech may charge for the time it spends assessing and documenting a change request from Client on a time and materials basis in accordance with the Client Services Agreement.
7. Fees and Expenses; Payment Terms; Interest on Late Payments. In consideration of the provision of the Services by Risetech and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Client Services Agreement. Client shall pay all invoiced amounts due to Risetech within 30 days from the date of Risetech’s invoice. Client shall make all payments hereunder in US dollars. In the event payments are not received by Risetech on a timely basis, Risetech may, without limiting its other rights and remedies, suspend performance of all or any portion of the Services until payment has been made in full.
8. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
9. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Risetech in the course of performing the Services, including any items identified as such in the Client Services Agreement (collectively, the “Deliverables”), except for any Client-furnished materials, shall be owned by Risetech. Risetech hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
10. Confidential Information. All non-public, confidential or proprietary information of a party, including, without limitation, Intellectual Property Rights, inventions, improvements, data, technology, information pertaining to business operations and strategies, and information pertaining to customers, clients, vendors, employees, pricing and marketing (collectively, “Confidential Information”), disclosed by such party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential and shall not be disclosed or copied by the Receiving Party without the prior written consent of the Disclosing Party. Confidential Information does not include information that the Receiving Party can demonstrate: (a) is or becomes, before or after disclosure, public knowledge through no breach of this Agreement by the Receiving Party; (b) is lawfully received by the Receiving Party without confidentiality or non-use restrictions from an unaffiliated third party without breach of any confidentiality obligations; (c) was rightfully known by or in the possession of the Receiving Party without confidentiality or non-use restrictions before being disclosed by or on behalf of the Disclosing Party under this Agreement; or (d) is independently developed by the Receiving Party, as established by documentary evidence, without the use of or reference to, in whole or in part, any Confidential Information of the Disclosing Party. The Receiving Party agrees to use the Confidential Information only to perform, provide or make use of the Services and Deliverables. The Disclosing Party shall be entitled to injunctive relief for any violation of this Section.
11. Data Security.
(a) Risetech will employ security measures in accordance with Risetech’s data privacy and security policy, as amended from time to time, a copy of which is available at https://www.risetechpartners.com/privacy-policy/. Notwithstanding anything herein to the contrary, Risetech shall employ reasonable administrative, organizational, physical and technical security safeguards to protect Client Data (as defined below) and Confidential Information. Risetech shall promptly notify Client if it becomes aware of any unauthorized access to Client Data or Client’s computer systems, or unauthorized use of Client Data or the information on Client’s computer systems. Risetech maintains an incident response plan and shall implement the procedures required under such incident response plan on the occurrence of a data breach.
(b) As between Client and Risetech, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly, from Client by or through the Services (“Client Data”), including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this Agreement. For the duration of this Agreement, Client hereby grants a limited, revocable, non-transferable right to Client Data solely: (i) to Risetech, its subcontractors and their respective employees and agents as is necessary or useful to perform the Services; and (ii) to Risetech as is necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. Client represents, warrants and covenants to Risetech that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Risetech and stored in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.
(c) Except as otherwise provided in this Agreement, Client has and will retain sole responsibility for: (i) all Client Data, including its content and Client’s use; (ii) all information, instructions and materials provided by or on behalf of Client in connection with the Services; (iii) Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third party services (“Client Systems”); (iv) the security and use of Client’s access credentials; and (v) all authorized access to and use of the Services and Deliverables directly by or through the Client Systems or its access credentials, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Client shall employ reasonable physical, administrative and technical controls, screening and security procedures and other safeguards designed to: (x) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (y) control the content and use of Client Data.
(a) Risetech warrants to Client that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Risetech shall not be liable for a breach of the warranty set forth in the preceding sentence unless Client gives written notice of the defective Services, reasonably described, to Risetech within 30 days of the time when Client discovers or ought to have discovered that the Services were defective. Risetech shall, in its sole discretion, either: (i) re-perform the defective Services; or (ii) refund the price paid for such defective Services at the pro rata contract rate.
(b) THE REMEDIES SET FORTH IN THIS SECTION 12 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND RISETECH’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(A) ABOVE.
13. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(A) ABOVE, RISETECH MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR DELIVERABLES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Any oral or written description of the SERVICES OR DELIVERABLES is for the sole purpose of identifying SUCH SERVICES OR DELIVERABLES and shall not be construed as an express warranty.
(a) Subject to the terms and conditions of this Agreement, including those set forth in Sections 14(b) and 15, each party (as “Indemnifying Party”) shall indemnify, defend and hold harmless the other party and its representatives, officers, directors, employees, agents, affiliates, successors and permitted assigns (each, an “Indemnified Party”) against any and all losses, damages, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the fees and costs of enforcing any right to indemnification under this Agreement, that are incurred by an Indemnified Party (collectively, “Losses”), to the extent arising out or resulting from any third party claim against the Indemnified Party alleging: (i) a material breach of this Agreement by the Indemnifying Party or the Indemnifying Party’s employees or agents; or (ii) any negligent or more culpable act or omission of the Indemnifying Party or its employees or agents (including any recklessness or willful misconduct) in connection with the performance of this Agreement.
Notwithstanding anything to the contrary in this Agreement, an Indemnifying Party is not obligated to indemnify or defend an Indemnified Party against any claim to the extent such claim or corresponding Losses arise out of or result from, in whole or in part, the Indemnified Party’s: (i) negligence or more culpable act or omission (including recklessness or willful misconduct); (ii) bad faith failure to comply with any of its obligations set forth in this Agreement; or (iii) use of the Services or Deliverables in any manner not otherwise authorized under this Agreement or that does not materially conform with any usage instructions, guidelines or specifications provided by Risetech.
15. Limitation of Liability.
(a) IN NO EVENT SHALL RISETECH BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT RISETECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL RISETECH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ANY CALENDAR YEAR, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO RISETECH DURING SUCH CALENDAR YEAR.
(c) The limitation of liability set forth in Section 15(b) above shall not apply to (i) liability resulting from Risetech’s recklessness or willful misconduct and (ii) death or bodily injury resulting from Risetech’s negligent acts or omissions.
16. Termination. In addition to any remedies that may be provided under this Agreement, Risetech may terminate this Agreement with immediate effect upon written notice to Client if Client: (a) fails to pay any amount when due under this Agreement and such failure continues for seven days after Client’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. Insurance; Optional Cyber Insurance Assessment.
(a) During the term of this Agreement and for a period of three (3) years thereafter, Client shall, at its own expense, maintain and carry insurance in full force and effect which includes, without limitation, commercial general liability in a sum no less than $1,000,000 per occurrence and $2,000,000 annual aggregate with financially sound and reputable insurers. Upon Risetech’s request, Client shall provide Risetech with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Risetech as an additional insured. Client shall provide Risetech with 30 days’ advance written notice in the event of a cancellation or material change in Client’s insurance policy. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against Risetech’s insurers and Risetech.
(b) Client acknowledges that Risetech generally encourages its clients to purchase and maintain cyber liability insurance to mitigate the risks associated with data breaches and other cyber security issues. To assist Client in determining whether to purchase cyber liability insurance, Ristech will, upon Client’s request and at no additional charge, engage a third-party provider to perform a cyber liability insurance risk assessment for Client.
18. Nonsolicitation. Client and Risetech each agrees that during the term of this Agreement and for a period of one (1) year thereafter, neither Client nor Risetech nor any of their affiliates (each, a “Restricted Person”) will, directly or indirectly, solicit for employment or otherwise induce, influence, or encourage to terminate employment with the other party or any of its affiliates, any current or former employee of the other party or any of its affiliates (i) with whom the Restricted Person had more than incidental contact in connection with the performance of the Services, (ii) who was materially involved in or had access to confidential or proprietary information in connection with the performance of the Services, or (iii) who became known to the Restricted Person in connection with the performance of Services; provided, that a general solicitation that is not directed specifically to any employees of the other party or its affiliates will not, of itself, be deemed to breach this Section
19. Waiver. No waiver by Risetech of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Risetech. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Risetech hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (each a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) epidemic, pandemic or disease outbreak; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (e) government order, law or action; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities; (j) failure or fluctuation in electric power or telecommunication equipment; and (k) other similar events beyond the control of the Impacted Party. The Impacted Party shall give notice within five days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
21. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Risetech. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
22 .Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
24. Governing Law; Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. Any legal suit, action or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in the Milwaukee County, Wisconsin, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
25. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Client Services Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
26. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement, including, without limitation, Sections 9, 10, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28.
28. Amendment and Modification. This Agreement may be amended or modified only in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.