The Company shall provide some or all of the following ("Services") to Client in exchange for the fees not to exceed those outlined in the following addendums:
- 1.1.1. Information Technology Managed Services
- 1.1.2. Project Management
- 1.1.3. Project Implementation
- 1.1.4. Information Technology Consulting Services
- 1.1.5. Solution Development
- 1.1.6. Cloud Services
- 1.1.7. Hardware, Software and Licensing Products
- 1.2.1. This Agreement shall commence as of the Effective Date of this agreement and shall remain in effect for the period of the entire term selected for service, unless earlier terminated as provided herein (the “Initial Term”).
- 1.2.2. Termination for Default. Each party shall have the right to terminate this Agreement in the event the other party breaches any provision hereof and the other party fails to cure such breach no later than thirty (30) days after receiving written notice of default from the non-breaching party. Such written notice of default must describe with specificity the exact nature of the alleged breach.
- 1.2.3. Termination for Convenience. Either party may terminate this Agreement in its entirety for convenience upon ninety (90) days written notice. During such ninety-day period, the Company shall continue to perform services and Client shall continue to pay all amounts due under the Agreement.
- 1.2.4. Transition Assistance. Company understands and agrees that Client’s business operations are dependent on the Services, and that the failure to receive the Services could result in irreparable damage to Client. Therefore, Company agrees that in the event of any termination of this Agreement for any reason, Company shall fully cooperate with Client in the transition of the Services to another provider of replacement or substitute. Client understands Company shall be paid at the fair market rates for transition assistance.
2. PAYMENT AND INVOICING TERMS
2.2.1. Invoices will be submitted monthly by the Company for payment by Client. Payment is due within thirty (30) days after receipt and is past due after thirty (30) business days from receipt of invoice. Client shall have the right to withhold amounts it disputes in good faith as being owed to Company. If Client has any valid reason for disputing any portion of an invoice, Client will so notify the Company in writing within fifteen (15) calendar days of receipt of invoice by Client, and if no such notification is given, the invoice will be deemed valid. The portion of the Company's invoice that is not in dispute shall be paid in accordance with the procedures set forth herein. Except as set forth in this Agreement, as specifically stated in any Order, or as otherwise agreed pursuant to a valid modification of this Agreement, there are no other fees or costs to be paid by Client under this Agreement. The making of any payment or payments by Client, or the receipt thereof by Company, shall in no way affect the responsibilities and obligations of Company hereunder, and shall not imply acceptance by Client of the Services or the waiver of any warranties or requirements of this Agreement.
2.2.2. A finance charge of one percent (1%) per month on the unpaid amount of an invoice, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts may be sought by Company in the collection of any past due amounts. If payment of undisputed invoices is not current, the Company may suspend performing further work until payment of the undisputed amount.
2.3. Taxes. All amounts payable pursuant to this Agreement are exclusive of taxes. Accordingly, there will be added to any such amount payable by Client the monetary sum equal to any and all current and future applicable taxes, however designated, incurred as a result of or otherwise in connection with this Agreement or the Services, including without limitation state and local privilege, excise, sales, services, withholding, and use taxes and any taxes or other amounts in lieu thereof paid or payable by Client. If Client does not pay such taxes, the Company may make such payments and Client will reimburse the Company for those payments. Client will hold the Company harmless for any payments made by Client pursuant to this Section 2.4. Notwithstanding the foregoing, Client will not make deductions from any fees to be paid to Company hereunder for federal, state or municipal income taxes or for social security taxes, unless otherwise required to do so by governmental regulations. Company shall be responsible for and shall pay all federal, state or municipal taxes with respect to compensation, wages, or other remuneration for any services to be performed pursuant to this Agreement and shall indemnify, defend, and hold harmless Client from and against all such taxes and shall comply with all governmental regulations with respect thereto, including the filing of all necessary reports and returns.
2.4. Insurance. At all times during the performance of this Agreement, Company shall maintain commercial general liability insurance acceptable to Client and statutorily required workers compensation coverage. Company will provide Client with certificate of insurance evidencing such coverage’s, which shall reflect the Client as named as an "Additional Insured" under Company's commercial general liability insurance policy.
Client may, with the approval of the Company, issue written directions within the general scope of any Services to be ordered. Such changes (the "Change Order") may be for additional work or the Company may be directed to change the direction of the work covered by the Statement of Work, but no change will be allowed unless agreed to by the Company in writing.
4. STANDARD OF CARE; WARRANTIES
The Company acknowledges familiarity with Client’s data centers, telecommunication providers, servers, storage, backup systems, personal data devices, PCs and applications (collectively the “Systems”) and warrants that the Services provided hereunder are suitable for Client’s needs, compatible with the Systems and Client’s operating environment. The Company further warrants that the Services shall be performed by properly trained and where available, certified personnel possessing up to date competencies consistent with the highest applicable industry standards and utilizing hardware, software and network interfaces compatible with Client’s Systems. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Additionally, Company represents and warrants as follows: (i) it has the full power, capacity and authority to enter into and perform this Agreement and to make the grant of rights contained herein, including without limitation, the right to license any ancillary or third party programs licensed to Client under this Agreement; (ii) its performance of this Agreement does not violate or conflict with any agreement to which Company is a party; (iii) its performance under this Agreement and the Services shall comply with all federal, state and local laws and regulations; (iv) there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement; and (v) during the Term of this Agreement the Services shall materially conform to the requirements of this Agreement and any applicable specifications.
5. LIABILITY; INDEMNIFICATION
5.1. Limitation. Except with regard to Claims under which Company has a duty to indemnify Client as set forth in Section 5.3, the cumulative liability of each Party, regardless of the form of action, for all claims whatsoever related to this Agreement, including, but not limited to, any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all fees or compensation paid to Company under this Agreement, exclusive of reimbursed expenses and equipment hardware plus third-party software charges paid to Company under this Agreement. This limitation of liability is intended to apply to all claims of either Party, without regard to which other provisions of this Agreement have been breached or have proved ineffective. The foregoing limitation on liability will not be applicable to damages, losses or liabilities in connection with a party’s indemnification obligations, awarded on the basis of the liable Party’s gross negligence or willful misconduct.
5.2. Survival. Articles 2, 4, 5, and 6 survive the expiration or termination of this Agreement for any reason.
5.3. Indemnification by Company. At Company’s expense as provided herein, Company agrees to defend, indemnify, and hold harmless Client and its shareholders, directors, officers, agents, employees, members, affiliates and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs as provided herein arising out of a third party claim resulting from (a) any alleged act or failure to act by Company or its directors, officers, agents, or employees, including, without limitation, negligent or willful misconduct, alleged to (1) infringe the confidentiality or intellectual property rights of a third party, or (2) cause any injury to any person or persons or damage to tangible or intangible property; (b) Company’s breach of confidentiality obligations under this Agreement; (c) any breach (or claim or threat thereof that, if true, would be a breach) of any of the warranties, agreements, representations or obligations of Company under this Agreement; or (d) Company’s violation of applicable law (collectively referred to for purposes of this Section as “Claim(s)”), including the payment of all amounts that a court or arbitrator finally awards or that Company agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by Client or any other party indemnified under this Section in cooperating in the defense of any Claim(s). Client shall: (i) give Company prompt written notice of such Claim; and (ii) allow Company to control, and fully cooperate (at no expense to Client) with Company in, the defense and all related negotiations.
5.4. Indemnification by Client. At Client’s expense as provided herein, Client agrees to defend, indemnify, and hold harmless Company and its directors, officers, agents, employees, members, subsidiaries and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs as provided herein arising out of a third party claim resulting from (a) any alleged act or failure to act by Client or its directors, officers, agents, or employees, including, without limitation, negligent or willful misconduct, alleged to (1) infringe the confidentiality or intellectual property rights of a third party, or (2) cause any injury to any person or persons or damage to tangible or intangible property, (b) Client’s breach of confidentiality obligations under this Agreement, (c) any breach (or claim or threat thereof that, if true, would be a breach) of any of the warranties, agreements, representations or obligations of Client under this Agreement, or (d) Client’s violation of applicable law (collectively referred to for purposes of this Section as “Claim(s)”), including the payment of all amounts that a court or arbitrator finally awards or that Client agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by Company or any other party indemnified under this Section in cooperating in the defense of any Claim(s). Company shall: (i) give Client prompt written notice of such Claim; and (ii) allow Client to control, and fully cooperate (at no expense to Company) with Client in, the defense and all related negotiations.
5.5. In the event a third party Claim is found to have been the joint liability of both Client and Company, then each party shall indemnify the other to the extent found attributable to the acts or omissions of each.
6.1. Financial Insecurity and Adequate Assurances. If reasonable grounds for insecurity arise with respect to Client's ability to pay for the Services in a timely fashion or Company’s ability to perform under the terms and conditions of this Agreement, the other party may demand in writing adequate assurances of the party’s ability to meet its payment or other obligations under this Agreement. Unless the party provides reasonable assurances in a reasonable time and manner acceptable to the other party, in addition to any other rights and remedies available, the party may partially or totally suspend its performance while awaiting assurances, without any liability.
6.2. Severability. Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which remaining provisions shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances.
6.3. Modification and Waiver. Waiver of breach of this Agreement by either part shall not be considered a waiver of any other subsequent breach.
6.4. Independent Contractor. In the provision of Services hereunder, Company shall function as an independent contractor and not as an agent, partner or employee of Client. Company shall have no authority to bind Client in any transaction. Company acknowledges that it shall not be entitled to any benefits provided by Client to its employees.
6.5. Notices. All notices or other communications hereunder shall be in writing, sent by courier or the fastest reasonable means, provided that recipient receives a manually signed copy and the transmission method is scheduled to deliver within 48 hours, and shall be deemed given when delivered to the address specified below or such other address as may be specified in a written notice in accordance with this Section.If to the Company:
- StratX, LLC
- Attention: Allison Robinson
- 2931 Ridge Road Suite 101-203
- Rockwall, Texas 75032
Any party may, by notice given in accordance with this Section to the other parties, designate another address or person or entity for receipt of notices hereunder.
6.6. Assignment. This Agreement is not assignable or transferable by either party without the written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement, without the other party’s consent, to any Affiliate, or in the event of a merger, acquisition, or sale of all or substantially all of its assets. In the event Company assigns the Agreement, Company shall remain responsible for all obligations under the Agreement unless expressly agreed otherwise by Client. “Affiliate” means any entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the party.6.7. Dispute Resolution; Mediation; Arbitration.
6.7.1. The Company and Client recognize that disputes arising under this Agreement are best resolved at the working level by the parties directly involved. Both parties are encouraged to be imaginative in designing mechanism and procedures to resolve disputes at this level. Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party's organization for resolution. Failing resolution of conflicts at the organizational level, the Company and Client agree that any remaining conflicts arising out of or relating to this Contract shall be submitted to nonbinding mediation unless the Company and Client mutually agree otherwise. If the dispute is not resolved through non-binding mediation, then the dispute shall be resolved through binding arbitration as set out below.
6.7.2. Subsequent to mediation, any dispute between Client and Company related to this Agreement will be resolved by arbitration governed by the Federal Arbitration Act and, to the extent not inconsistent with that statute, conducted in accordance with the rules of practice and procedure for the arbitration of commercial disputes of Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The arbitration shall be conducted in Dallas, Texas and administered by JAMS, which will appoint a single arbitrator. All arbitration hearings will be commenced within 30 days of the demand for arbitration unless the arbitrator, for showing of good cause, extends the commencement of such hearing. The decision of the arbitrator will be binding on Client and Company, and judgment upon any arbitration award may be entered in any court having jurisdiction. The parties acknowledge that, by agreeing to arbitrate disputes, each of them is waiving certain rights, including its rights to seek remedies in court (including a right to a trial by jury), to discovery processes that would be attendant to a court proceeding, and to participate in a class action. The provisions of this paragraph 6.7(b) shall survive any early termination of this Agreement.
6.7.3.Client and Company each waives right to a jury in any litigation in connection with this Agreement. Client and Company each acknowledges that this waiver has been freely given after consultation by it with competent counsel. This paragraph 6.7(c) has been included only for the event that, despite the parties’ intention, the agreement to arbitrate disputes is held to be inapplicable, and nothing in this paragraph 6.7(c) is intended to qualify the parties’ agreement to arbitrate all disputes. The provisions of this paragraph 6.7(c) shall survive early termination of this agreement.
6.8. Section Headings. Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
6.9. Representations; Counterparts. Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder. This Agreement may be executed (by original or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.
6.10. Residuals. Nothing in this Agreement or elsewhere will prohibit or limit the Company's ownership and use of ideas, concepts, know-how, methods, models, techniques, skill knowledge and experience (collectively “Know-How”) that were used, developed or gained in connection with this Agreement, provided such Know-How or use thereof does not violate Section 6.17 of this Agreement.
6.11. Nonsolicitation of Employees. During and for one (1) year after the term of this Agreement, neither party will solicit the employment of, or employ the other party’s personnel, without the Company's prior written consent.
6.12. Cooperation. Client will cooperate with the Company in taking actions and executing documents, as appropriate, to achieve the objectives of this Agreement. Client agrees that the Company's performance is dependent on Client's timely and effective cooperation with the Company. Accordingly, Client acknowledges that any unreasonable delay by Client may result in the Company being released from an obligation or scheduled deadline or in Client having to pay extra fees for the Company's agreement to meet a specific obligation or deadline despite the delay. Company will take all commercially reasonable steps to insure that Client has sufficient time and information to fully consider any action or commitment.
6.13. Governing Law and Con¬struction. This Agreement will be governed by and construed in accordance with the laws of Texas, without regard to the principles of conflicts of law. The language of this Agreement shall be deemed to be the result of negotiation among the parties and their respective counsel and shall not be construed strictly for or against any party.
6.14. Entire Agreement; Survival. This Agreement, including any Exhibits, states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof, and supersedes any and all prior understandings, representations, warranties, agreements or contracts (whether oral or written) between Client and the Company respecting the subject matter hereof. This Agreement may only be amended by an agreement in writing executed by the parties hereto.
6.15. Force Majeure. The Company shall not be responsible for delays or failures (including any delay by the Company to make progress in the prosecution of any Services) if such delay arises out of causes beyond its control and which it could not have avoided through the exercise of reasonable care. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of third parties not under contract with or otherwise under the control of Company.
6.16. Use by Third Parties. Work performed by the Company pursuant to this Agreement is only for the purpose intended and may be misleading if used in another context. Except with regard to an Affiliate, Client agrees not to use any documents produced under this Agreement for anything other than the intended purpose without the Company's written permission. This Agreement shall, therefore, not create any rights or benefits to parties other than to Client and the Company.
6.17.1. During the course of this Agreement, each Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) certain non-public information or materials received from or accessed via the Disclosing Party regarding Disclosing Party’s or its Affiliates’ products, intellectual property, business, business plans, marketing programs and efforts, customer lists, customer information, employee information (including HIPAA-protected data) financial information and other confidential information and trade secrets (“Confidential Information”). Without limiting the generality of the foregoing, Company shall comply with applicable data security and privacy statutes, regulations and other laws relating to data security and privacy.
6.17.2. Confidential Information does not include information that: (1) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (2) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (3) was acquired from a third party without any breach of any obligation of confidentiality; (4) was independently developed by the Receiving Party hereto without reference to Confidential Information of the Disclosing Party; or (5) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the Receiving Party upon receiving such subpoena or order shall (i) promptly inform the Disclosing Party in writing and provide a copy thereof, (ii) cooperate with the Disclosing Party in limiting disclosure of the Disclosing Party’s Confidential Information, and (iii) shall only disclose that Confidential Information necessary to comply with such subpoena or order.
6.17.3. Except as expressly provided herein, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to and subsequent uses by the Receiving Party’s authorized employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements prior to receipt of Confidential Information restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Section. Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the Receiving Party uses to protect the Receiving Party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. Neither Party shall remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other Party’s Confidential Information.
6.17.4. On Client’s written request or upon expiration or termination of this Agreement for any reason, the Company will promptly: (1) return or destroy, at Client’s option, all originals and copies of all documents and materials it has received containing Client’s Confidential Information; and (2) deliver or destroy, at Client’s option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by Company, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (1), and provide a notarized written statement to Client certifying that all documents and materials referred to in subparagraphs (1) and (2) have been delivered to Client or destroyed, as requested by Client.
6.17.5. Company agrees that all intellectual property created or authored by Company, its employees or subcontractors during the performance of the Services shall be a “work made for hire” and that Client shall own all right, title and interest in and to all patents, copyrights, trademarks and trade secrets developed or created by Company in the course of performing under this Agreement (“Work Product”). Client assigns and agrees to assign all such right, title and interest in all Work Product to Company, and to execute such other and further documents as may be necessary to effectuate same.