These Terms & Conditions (“Terms”) apply to Client purchases from Coretechs, 5615 Corporate Blvd Ste 300B, Baton Rouge, LA 70808 (“Coretechs”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product“). Client hereby engages and retains Coretechs to render Services or provide Product, as specifically set forth and limited in the Managed IT Services Agreement (MSA), or any work order as agreed among the Parties (each a “Work Order”) under such MSA. Except as otherwise stated therein, subsequent MSAs or Work Orders shall be made a part of and subject to these Terms. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic MSA or subsequent MSA, 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 MSA and these Terms, the terms of the MSA will prevail over these Terms.
Coretechs reserves the right to change the Terms at any time, and any such change shall apply to any MSA entered into after such change, including any repeat or renewal of an MSA.
1 General Requirements & Conditions
For the purposes of these Terms, “System” means, collectively, any computer, computer network, computer system, peripheral, or device installed, maintained, supported, monitored, or operated by Coretechs pursuant to and as specifically identified in an MSA. To avoid a delay or negative impact on our provision of any Services, during the term of each MSA, Client agrees to refrain from modifying or moving the System (except for a System specifically designated for transportation between two or more locations, such as laptop computers or tablets), or installing software on the System, unless Coretechs expressly authorizes such activity. Coretechs will not be responsible for any consequences arising out of or relating to any unauthorized movement or installation taken by Client.
1.2 Maintenance; Updates
If patches and other software-related maintenance updates (“Update(s)”) are provided under an MSA, Coretechs will install the Updates only if Coretechs 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. Coretechs will not be responsible for any downtime or losses arising from or related to the installation or use of any Updates installed by Coretechs, provided that the Update was installed in accordance with the manufacturer or applicable vendor’s instructions.
1.3 Third-Party Service Providers
“Third-Party Service Providers” means Services provided by an entity or a Party other than the Coretechs in fulfillment of the MSA.
Client’s right to use the Third-Party Services is subject to Client’s understanding of, compliance with, and consent to these Terms and of any Third-Party agreements, which Coretechs does not have authority to vary, alter or amend.
Therefore, Coretechs may utilize a Third-Party Service Provider at its discretion to provide the Services in accordance with these Terms. The Third-Party Service Provider may require the Coretechs to sign a contract with the Third-Party Service Provider for its services (“Third-Party Contract”), and the terms of the Third-Party Contract may impose conditions and requirements upon Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or appear on our website, which identifies the Third-Party Service Provider and a link to its terms and conditions or EULA. Client hereby agrees to review all Third-Party Terms and Conditions and consent to those Third-Party Terms and Conditions which Client has consented Coretechs to contract upon its behalf.
The links are being provided as a courtesy, Client should monitor the links for the 3rd Party Providers to determine if they have the most current Terms and Conditions.
1.4 Third-Party Product Vendors
“Third-Party Product Vendors” means software, machinery, equipment, and/or products inclusive of component parts purchased from vendors in fulfillment of the MSA or subsequent MSA requirements.
Coretechs will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to Client but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and Coretechs will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product. The Third-Party Product Vendor may require Coretechs to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”), and the terms of the Third-Party Contract may impose certain conditions and requirements upon Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or attached to the MSA or subsequent MSA which identifies the Third-Party. Client hereby agrees to review all Third-Party terms and conditions and consent to those Third-Party terms and conditions which Client has consented Coretechs to contract upon its behalf. Third-Party Product Vendor terms and conditions link of PDF can be found at our website and/or MSA or subsequent MSA as applicable.
1.5 Third-Party Products
Unless otherwise stated in an MSA or subsequent MSA, all hardware, software, peripherals, or accessories purchased through Coretechs (“Third-Party Products”) are nonrefundable once the applicable MSA or subsequent MSA is placed in our queue for delivery. Coretechs 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 Client but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and Coretechs 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 an MSA or subsequent MSA, all Third-Party Products are provided “as is” and without any warranty whatsoever as between Coretechs and Client (including but not limited to implied warranties).
1.6 Third-Party Support
If at Coretechs’s discretion, a hardware or software issue requires vendor or OEM support, Coretechs may contact the vendor or OEM (as applicable) on Client’s behalf and pass through to Client all fees and costs incurred in that process. If such fees or costs are reasonably anticipated in advance to exceed $100, Coretechs will obtain Client’s consent before incurring such expenses on Client’s behalf unless exigent circumstances require otherwise.
“Subcontractors” means third-party to whom Coretechs contracts to provide specified services to complete the services indicated in the applicable MSA or subsequent MSA.
1.8 Conditions of Service
Client’s System is eligible for provision of Services as set forth in an MSA, provided the System is in good condition, and the following serviceability requirements and site environmental conditions are met:
1.8.1 Client shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by Coretechs’s representatives.
1.8.2 Coretechs’s representatives shall have, and Client shall provide full access to the System in order to affect the necessary monitoring and/or supplemental services.
1.8.3 Coretechs reserves the right to suspend or terminate the provision of any Service if, in Coretechs’s sole discretion, conditions at the service site pose a health or safety risk.
It is the responsibility of Client to promptly notify Coretechs of any events/incidents that may impact the services defined within these Terms and/or any supplemental service needs.
Unless otherwise specified in any subsequent MSA, Coretechs shall provide Services during Coretechs’s regular business hours, in accordance with Coretechs’s Service policies then in effect, which may be modified or amended at any time, in Coretechs’s sole discretion.
Client agrees that Client will inform Coretechs prior to, Client making any modification, installation, or service performed on the System by individuals not employed or contracted by Coretechs in order to assist Coretechs in providing an efficient and effective System support response. Client will be billed the full cost, at Coretechs’s hourly rate, to remediate and restore the Systems and/or Services to a state prior to change.
Only representatives authorized by Coretechs will be eligible to access and service Client’s System. Any unauthorized access or service conducted on the System without the explicit consent of Coretechs, which results in negative System performance, will not be covered by the monthly plan fee as documented in the MSA or subsequent MSA or other contract documents and will be billed according to Coretechs’s labor rates as outlined in the MSA or subsequent MSA.
Coretechs shall be obligated to provide service only at (a) the Service Site(s) as identified in the MSA or subsequent MSA; and (b) client systems as identified, which is defined as client-covered devices in the Remote Monitoring Management (“RMM”) platform. If Client desires to relocate, add or remove locations, Client shall give appropriate notice to Coretechs of Client’s intention to relocate sixty (60) days in advance. Coretechs reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by Client. Such right includes the right to refuse service at the relocation and/or new site.
1.9 Service Limitations
In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:
1.9.1 Cost of consumables, replacement parts, hardware, software, network upgrades, and associated services are outside the scope of these Terms. Coretechs will provide consultative specification, sourcing guidance, and/or Time and Material/Project offerings.
1.9.2 Any unauthorized changes made to the System without Coretechs’s written consent which causes issues or failures to the System, are beyond the responsibility of Coretechs and Client will be billed the full cost of all labor, equipment, materials, and related items or services to restore the System to the condition prior to any such unauthorized action.
1.10 Onboarding Process
Client acknowledges and agrees that Coretechs will have no responsibility for any deficiencies in the current operating systems and infrastructure until the Coretechs has had a reasonable opportunity to review the current system and provide Client with its recommendations, and Client has accepted and implemented same.
1.11 Offboarding Process
In the event of the suspension, expiration, or termination of any MSA by either party, except as otherwise set forth in an MSA, Coretechs will make reasonable accommodations to transition the provision of Client’s Services to Client or such third party designated by Client (collectively the “Onboarding Provider”). Client shall indemnify and hold harmless Coretechs, any Third-Party Service Provider, and their respective directors, officers, members, employees, consultants, and agents from and against any and all claims or losses resulting from the activities of Client or the Onboarding Provider during the transition period from Coretechs to the Onboarding Provider.
1.12 Network Devices, Hardware, and Systems
Coretechs shall only be responsible for providing services to network devices, hardware, and systems identified by the Client and Coretechs and set forth in the latest MSA or subsequent MSA and covered by Remote Management Monitoring (Hereafter referred to as RMM.) Coretechs may, in its sole discretion, deny requests to add devices, hardware, or systems. The Client shall be responsible for isolating and protecting the system by not allowing additional devices, hardware, or system on the system unless approved by Coretechs. Coretechs shall have no responsibility for any devices, hardware, or systems or damage resulting therefrom that are added to the System without Coretechs’s approval. Coretechs shall have the right to cancel this contract if devices, hardware, or systems are added without their approval. If Client obtains new devices, hardware, or systems and wishes to request Coretechs’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 MSA and the device is added to the RMM. Said written, signed MSA shall then become an addendum to this contract and be incorporated herein. Coretechs reserves the right to deny any requests for additional services and/or additional hardware/systems for any reason in their sole discretion.
1.13 Authorized Contact(s)
Client understands and agrees that Coretechs will be entitled to rely on any directions or consent provided to Coretechs by any of Client Authorized Contacts, as indicated in an applicable MSA will subsequent MSA. If no Authorized Contact is identified in an applicable MSA, then Client Authorized Contact will be the person(s) (i) who signed the Quote, MSA, or MSA, and/or (ii) who signed the applicable MSA or subsequent MSA. If Client desires to change Client Authorized Contact(s), please notify Coretechs of such changes in writing, which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
1.14 Shared Administrator Credentials
If Client shares server, network, or software application administrative credentials, Coretechs will not be held legally liable or responsible for any outages, errors, breaches, data loss, and misconfiguration since multiple administrators from different companies jeopardizes the integrity of the support outlined in these Terms.
2 Confidentiality and Non-disclosure
2.1 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.
2.2 Client Confidential Information
Client Confidential Information shall include any personally identifiable information or protected health information of Client employees, Client customers, and Client Data. 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. 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, Client hereby agrees to defend, indemnify and hold harmless Coretechs and any affiliated company, Coretechs’s respective present and former shareholders, officers, directors and employees and its attorneys and agents, and Coretechs’s 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 related to the failure of Client to comply with these Terms in the proper handling of protected health information to the extent not caused by Coretechs’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify Coretechs of the necessity of same.
2.3 Confidential Information of each Party
Confidential Information of each Party shall include the terms and conditions of these Terms and all MSA or subsequent MSA’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.
2.4 Confidential Information (other than Client Data)
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.
2.5 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 these Terms 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 these Terms.
Neither Party shall disclose the terms of any MSA or subsequent MSA and/or other contract documents to any third party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.
2.7 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.
2.8 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 protections of these Terms to the retained Confidential Information.
3. Provision of Materials and Services to Coretechs
Client agrees to timely furnish, at Client’s own expense, all personnel, all necessary computer hardware, software, and related materials and appropriate and safe workspaces for purposes of Coretechs or its subcontractors performing the Services. Client will also provide Coretechs or its subcontractors with access to all information, passwords, and facilities requested by Coretechs that are necessary for Coretechs 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, Client understands that Coretechs or its subcontractors may be unable to perform their duties adequately. and if such a situation should exist, Client will hold Coretechs harmless.
4. Responsibility for Equipment
Client acknowledges that from time to time (a) Coretechs may identify additional items that need to be purchased by Client, and (b) changes in Client system may be required in order for Coretechs to meet Client requirements. In connection therewith, Client agrees to work in good faith with Coretechs to effectuate such purchases or changes, and such changes shall be set forth in a new MSA or subsequent MSA. If Coretechs is required to purchase any assets, including computer hardware and/or
software, in connection with Coretechs providing the Services, all such assets will remain the sole property of Coretechs, except those assets sold by Coretechs to Client or procured by Coretechs on Client’s behalf shall be the sole property of Client. Client will take such reasonable precautions to ensure the quality, completeness, and workmanship of any item or equipment or hardware furnished by Client and for ensuring that the materials provided to Coretechs or its subcontractors do not infringe or violate the rights of any third party. Unless otherwise specified in the MSA or subsequent MSA and/or other contract documents, it is not the intent, nor does the Coretechs provide any type of backup of Client data. Client will maintain adequate backup for all data and other items furnished to Coretechs.
It is the Customers responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that cause damage to Coretechs’s products or services, and Coretechs disclaims all responsibility for any loss, including data.
5. Client Data Ownership and Responsibility
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 Client to Coretechs.
6. Intellectual Property
Client acknowledges and agrees that any written program materials, protocols, research papers, or other writings, as well as any improvements, inventions, new techniques, programs, or products (collectively the “Work”) made or developed by Coretechs before, during or after the commencement or expiration or earlier termination of an MSA, shall be deemed to be made by Coretechs for the sole and exclusive benefit of Coretechs, and that Client disclaims any benefits of the so-called “work made for hire doctrine within the meaning of the United States Copyright Act, Title 17, United States Code. Coretechs retains all rights, title, and interest in and to in any Work invented, created, or composed prior to, during the course of, or incident to the performance of an MSA, as well as any code, software, materials, or methods created prior to, during the course of or after the conclusion of any MSA (all such Work collectively referred to as the “Intellectual Property”). Client acquires no right or interest in any such Intellectual Property by virtue of an MSA or the work performed under any MSA.
6.1 Intellectual Property Use
Client may only use and disclose Intellectual Property in accordance with the terms of these Terms and applicable MSA or subsequent MSA and/or other contract documents. Coretechs reserves all rights in and to the Intellectual Property not expressly granted in these Terms. 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 Coretechs’s prior written approval. Except as expressly authorized in these Terms or any MSA or subsequent MSA and/or other contract documents, 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 an outsourcing or Coretechs 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.
7. License Agreements
(a) License. Subject to these Terms, Coretechs grants 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 Client own internal use. At all times, all software on the System must be genuine and licensed, and Client agrees to provide Coretechs with proof of such licensing upon its request. If Coretechs requires Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of Coretechs providing its Services to Client.
(b) Software Installation or Replication. If Coretechs is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. Client act of providing any software to Coretechs will be deemed Client affirmative acknowledgment to Coretechs that Client has a valid license that permits Coretechs to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client equipment for the installation of unlicensed software. Customer will indemnify and hold harmless Coretechs against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to Coretechs or any Customer breach of this Section.
(c) Pre-Existing License Agreements. Any software product provided to Client by Coretechs 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 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 Client, then Client hereby grants Coretechs permission to accept the EULA on Client behalf. EULAs may contain service levels, warranties, and/or liability limitations that are different than those contained in these Terms. 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, Coretechs is required to comply with a third-party EULA and the third-party EULA is modified or amended, Coretechs reserves the right to modify or amend any applicable MSA or subsequent MSA with Client to ensure its continued compliance with the terms of the third-party EULA. Client agrees to hold harmless and Indemnify Coretechs against Client violation of any of the terms and conditions included in the subject EULA.
8. Coretechs Employees, Agents, or Subcontractors
Client acknowledges that Coretechs has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors, and independent subcontractors. To the extent permitted by law from the Effective Date of the last MSA and up to one (1) calendar year after the date of termination of any MSA or subsequent MSA, Client shall not hire or contract directly or indirectly with any of the Coretechs’s employees, agents or subcontractors who have communicated with and/or worked on any Service for Client. Client and Coretechs 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 Client of this provision. Therefore, Client and Coretechs mutually agree that in the event of a breach by Client in any way of this provision, Client shall pay to Coretechs 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 Coretechs would suffer as a direct result of a breach by Client, taking into account the following facts and circumstances: (a) an average employee working for Coretechs will generate significant net revenue for the Coretechs and remain employed by the Coretechs for an extended period of time; (b) Coretechs 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 Coretechs upon such breach is virtually impossible. In light of these circumstances, Client and Coretechs mutually agree that this liquidated damages provision represents reasonable compensation to Coretechs for the losses that it would incur due to any such breach. Client and Coretechs further acknowledge and agree that nothing in this paragraph shall limit Coretechs’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 Client breach of this section.
Except as set forth in an MSA, no warranty shall be provided by Coretechs. Any warranties shall be limited to those provided by a Third-Party Product Vendor.
Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by Coretechs product shall be deemed null and void if the applicable product is (i) altered, modified, or repaired by persons other than Coretechs, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Coretechs (ii) misused, abused, or not operated in accordance with the specifications of Coretechs or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than Coretechs or persons approved or designated by Coretechs.
Notwithstanding the above, Coretechs does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. Coretechs does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery or performance.
10. Software, Hardware, & Security
Client understands and agrees that data loss or network failures may occur, whether or not foreseeable. Therefore, Client must maintain proper security for Client System, including but not limited to software and hardware updates that are made available by the manufacturer. Client will adhere to software and hardware updates and maintain specific security standards, policies, and procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework
11. Client Cyber Security
It is understood that within the Services provided, it is not the intent, nor does Coretechs provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for Client unless otherwise specified in the MSA or subsequent MSA. As cyber threats are always evolving, it is strongly recommended that Client engage the services of a cyber protection third-party vendor to independently monitor the cyber controls and cyber activities in Client System.
12. Regulatory Compliance
Any software or service provided by Coretechs is not intended to bring Client into full regulatory compliance with any rule, regulation, National Standard, or requirement. The software, service, or solutions may aid Client’s efforts to achieve regulatory compliance; however, Coretechs does not provide comprehensive compliance solutions.
13. Unauthorized Information Transfer
In no event, except for the willful misconduct or gross negligence on its part, shall Coretechs or its subcontractors, whether under these Terms, an MSA, a MSA, 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 Client’s data or Systems are breached because of the distribution of and 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 Coretechs or its subcontractors, whether under these Terms, an MSA or subsequent MSA, 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 a 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 these Terms.
15. Release with Limitation of Liability
THIS PARAGRAPH LIMITS THE LIABILITIES ARISING UNDER THESE TERMS OR ANY MSA OR SUBSEQUENT MSA AND IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS. THE PARTIES ACKNOWLEDGE AND AGREE THEY WOULD NOT ENTER INTO THESE TERMS UNLESS THEY COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. EXCEPT FOR CORETECHS’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, CLIENT AND ANY OF CLIENT AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS, AND ASSIGNS AGREE TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, INCLUDING INDEMNIFICATION OBLIGATIONS AGREE TO RELEASE THE OHER PARTY AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES. CORETECHS’S AGGREGATE LIABILITY RELATING TO ANY OF THE SERVICES SHALL BE QUANTIFIED IN THE MSA OR SUBSEQUENT MSA OR OTHER CONTRACT DOCUMENTS. CORETECHS SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY DELAY IN DELIVERY OR PERFORMANCE OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THESE TERMS.
16. 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 PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) 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.
17. Coretechs Insurance
Coretechs 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 these Terms create exposure generally covered by the following insurance policies, Coretechs will maintain at its own sole cost and expense at least the following insurance covering its obligations under these Terms: (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).
18. Client Insurance
18.1 Commercial Property Insurance
Client shall secure at Client own cost and expense Property Insurance for Client equipment that is part of the provisions of the service agreement.
18.2 Cyber Insurance
Client acknowledges that Client is solely responsible for obtaining and maintaining its own Cyber Liability Insurance for the duration of these Terms to adequately insure its cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client’s specific coverage and policy limit requirements. Client acknowledges that Coretechs does not provide Client with any form of Cyber Liability or other insurance coverage in connection with the Services or an executed MSA or subsequent MSA and that Client’s use of the Services does not, in any way: (i) replace a Cyber Liability policy, (ii) mitigate Client’s need for Cyber Liability insurance coverage or (iii) relieve Client’s responsibility for obtaining its own Cyber Insurance coverage.
18.3 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 WORKER’S 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. CLIENT WILL NOT HOLD Coretechs ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF SERVICE.
The express remedies set forth in these Terms will constitute Client’s exclusive remedies, and Coretechs’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 CORETECHS IN SECTION 10, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” CORETECHS DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED OR IMPLIED, ARISING FROM THE 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.
CORETECHS DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY OF CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT 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 CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any Coretechs 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.
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 so as 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.
These Terms may not be amended except by a writing executed by an authorized individual of the Coretechs.
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 Coretechs or Client to the other party to these Terms.
These Terms shall be governed by and construed in accordance with the laws of the State of Louisiana without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Louisiana.
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.
25. Force Majeure
Neither party will be liable to the other party for delays or failures to perform its obligations under these Terms and Conditions or any MSA or subsequent MSA 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.
26. Data Access/Storage
Depending on the Service provided, a portion of Client data may occasionally be accessed or stored on secure servers located outside of the United States. Client agrees to notify Coretechs if Client company requires Coretechs to modify Our standard access or storage procedures.
Client may not assign Client rights or obligations under these Terms without Coretechs’s prior written consent which shall not be unreasonably withheld.
28. Payment, Late Payment, and Default
Payment due date: All invoices issued to you are due and payable to us within the terms stated on the invoice unless otherwise agreed in writing by cash, check, credit card, or direct deposit in accordance with these terms and conditions and in the way listed on the invoice.
Late payment: If you fail to pay an invoice within fifteen (15) days of the due date, we may, in our absolute discretion and without prior notice, suspend or discontinue the supply of goods and/or services to you.
Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by you to us and will be recoverable from you, in addition to the original invoice cost. If you default in payment of any invoice on time, monies which would have become due by you at a later date shall be immediately due and payable without any further notice to you. Collectively, all monies are referred to in these conditions as a “sum due”.
Interest: If payment of any sum due is not made on time, we will charge interest daily on the sum due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the sum due is paid in full.
Application of funds: All payments of the sum due made by you to us will be applied as follows:
- first in or towards payment of any costs, including legal costs, charges, expenses, or outgoings paid by us in relation to any dishonored check fees, collection costs, or any other action taken by us for the recovery of any amounts owing by you to us.
- secondly, in or towards payment of any interest due or payable hereunder.
- thirdly, in or towards payment of your debts to us in order from the longest standing due to the most recently incurred.
Security: We may require you to provide security over your property, including the goods or any other property of yours, as collateral to be held as security for any sum due or as a condition precedent to the continuation of supply of goods or services by us to you.
Payment arrangements: In the event that a repayment arrangement is made in relation to any sum due and the supply of goods or services is resumed, but then a repayment due under that arrangement is not made on time, we may, in our absolute discretion and without prior notice, again suspend or discontinue the supply of goods or services to you.
Power of Attorney: You hereby irrevocably appoint us as your attorney to do anything we consider fit for the recovery of the sum due or the creation, perfection, or enforcement of any collateral held or to be held as security for any sum due.
Other remedies: We may exercise any of our rights and remedies, including taking legal action against you for the recovery of any monies due to us, notwithstanding it may have exercised other rights under these conditions.
It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under this agreement. You shall pay any such taxes unless a valid exemption certificate is furnished to us for the state of use.