ADAR, INC. STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (these “Terms”) govern and are incorporated into each Service Order entered into by Adar, Inc. (“Adar”) and its customers (each a “Customer”). Each Service Order and these Terms are collectively referred to herein as this “Agreement”.
Adar may change its Acceptable Use Policy (“AUP”) or these Terms to add restrictions on Customer’s use of the Services. Any changes to the AUP or Terms will become effective for all Service Orders upon the first to occur of: (i) renewal of a Service Order, (ii) Customer’s execution of a new or additional Service Order that incorporates the revised AUP or Terms by reference, or (iii) thirty days following Adar’s notice to Customer describing the change. If a change to the AUP or Terms materially and adversely affects Customer, Customer may terminate the Service Order by giving Adar written notice of termination no later than 30 days following the date the change became effective as to Customer. If Customer terminates the Service Order because Adar has modified Adar’s AUP or Terms in a way that materially adversely affects Customer, Adar may decide to waive that change as to Customer and keep Customer’s Service Order or Service Orders in place for the remainder of the term. If Adar does not waive that change as to Customer and the Service Order does in fact terminate, Adar will not charge Customer any early termination fee for a termination on those grounds.
2.1 Customer will use reasonable security precautions in light of Customer’s use of the Services, including encrypting any information sent to or from the Services or an Adar device which: (a) identifies an individual, such as name, social security number or other government issued number, date of birth, address, telephone number, biometric data, mother’s maiden name; (b) is “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4); (c) is “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103; or (d) is other personally identifiable information. Adar will make tools available to Customer to implement such security precautions.
2.2 Customer will comply with this Agreement and any laws applicable to Customer’s use of the Services.
2.3 Customer will cooperate with Adar’s reasonable investigation of Services outages, security problems, and any suspected breach of this Agreement.
2.4 Customer will keep its billing, contact and other account information up to date.
2.5 Customer is responsible for its use of the Services. Customer is responsible, without limitation, for obtaining appropriate permission to use, store, transmit and access any data, documentation, information or other materials stored on or used with the Services. Customer is responsible for use of the Services by any third party to the same extent as if Customer were using the Services itself.
2.6 Customer warrants that all copies of software provided by Customer and used by Customer on Adar hardware or with the Services are properly licensed. Customer will defend, indemnify and hold harmless Adar, its directors, officers, owners, employees and agents from and against all claims, suits, proceedings, costs, and expenses (including, without limitation, attorneys’ fees) arising from or related to any software provided by Customer.
3.1 Adar agrees to deliver and allow Customer to possess and use the PC over Internet Protocol Portals, or other thin-client terminals and other equipment provided by Adar to Customer to enable access by Customer to the Services, and other equipment set forth in a Service Order (collectively, the “Bailed Property”).
3.2 Customer agrees to accept and hold in bailment the Bailed Property for Adar, subject to the terms and conditions of this Agreement. During the term of the bailment under this Agreement, the Bailed Property will solely be used by Customer for Customer’s own commercial use only at the offices set forth in the Service Order or at other offices for which Customer has provided written notification to Adar.
3.3 Customer shall maintain the Bailed Property at its offices set forth in the Service Order and may only remove it only upon written notice to Adar. Adar reserves the right to inspect the Bailed Property on twenty-four hour notice for the purpose of verifying Customer’s compliance with this Agreement.
3.4 The Bailed Property is not being sold or leased to Customer. Title to the Bailed Property remains with Adar, and Customer may not purchase, sell, lease, mortgage, borrow against, pledge or otherwise create a legal or equitable interest in the Bailed Property for itself or any third party. Customer will segregate the Bailed Property from its own and will not obscure or remove any markings from the Bailed Property. Customer may not represent to any person that the Bailed Property is other than Adar’s property.
3.5 Customer will be responsible for any loss of or damage to the Bailed Property. Customer will be solely responsible for procuring and paying for any insurance that Customer may desire against risk of loss or damage to the Bailed Property.
3.6 Upon request, and upon any termination or expiration of the applicable Service Order, Customer will return the Bailed Property to Adar in the same condition as when delivered to Customer, ordinary wear and tear excepted. All expenses such as transportation costs, and any other type of expense will be the exclusive responsibility of Customer.
3.7 Customer hereby authorizes and consents to Adar’s filing of a UCC financing statement and any other precautionary filings regarding the Bailed Property and agrees that the UCC financing statement and other precautionary filings regarding the Bailed Property may indicate that the Bailed Property is held by Customer as a bailee.
4.1 Changes. Either party may request changes to a Service Order. Changes are broadly defined as those activities or equipment not originally considered within tasks to be performed or equipment to be provided as part of the Services, in each case as specified in the original Service Order. Change requests must be submitted by the party proposing such change request in writing signed by the submitting party’s designated primary contact. In either case, Adar will prepare a time and cost estimate, including payment terms, for the requested change(s) (“Change Order”). Upon approval in writing by Customer of the Change Order, the Change Order will be deemed to be part of, and governed by all of the terms and conditions of, this Agreement and the applicable Service Order, and Adar will begin the work specified therein.
5.1 Fees. Adar’s fees generally include sales and use taxes. Any additional taxes applicable to the sale or furnishing of any Services or associated materials hereunder or to their use by Customer relating (excluding any tax on the net income of Adar) that are imposed after execution of the Service Order and are not already included with the fees will be separately itemized on Customer’s invoice, and Customer will pay, or reimburse Adar for, the gross amount of any such taxes.
5.2. Payment. All payments under this Agreement will be made in United States dollars. Unless stated otherwise in the Service Order, billings will be made by Adar on a monthly basis on or about the first day of each month, and payment for such invoices will be due as set forth in the applicable Service Order. Customer will reimburse Adar for expenses and costs including, without limitation, reasonable attorneys’ fees, incurred by Adar to collect unpaid amounts hereunder.
6.1. Term. These Terms will remain in effect while any Service Order is in effect. Each Service Order will be for the term set forth therein.
6.2 Termination without Cause. Customer may terminate any Service Order at any time without cause by not less than thirty (30) days prior written notice to the other party.
6.3 Termination with Cause. Either party will have the right to terminate any Service Order if the other party has materially breached this Agreement; provided, however, that no such termination will be effective unless (i) the terminating party provides written notice to the other party setting forth the facts and circumstances constituting the breach, and (ii) the party alleged to be in breach does not cure such breach within ten (10) business days following receipt of such notice. Customer acknowledges that failure to pay fees will constitute a material breach of the Service Order, and that in addition to the termination rights set forth in this Section 6.3, failure to pay fees may result in suspension pursuant to Section 6.5. In addition to payment of unpaid service fees, reinstatement after suspension for failure to pay fees will require payment of a reinstatement fee equal to one (1) month of service fees.
6.4 Early Termination Fee. If Customer terminates a Service Order pursuant to Section 6.2 or Adar terminates a Service Order pursuant to Section 6.3, Customer will pay Adar an early termination fee determined as set forth in the Service Order.
6.5 Suspension. Adar may suspend Services without liability if: (a) Adar reasonably believes that the use of the Services violates law or this Agreement, infringes the intellectual property rights of a third party or poses a threat to Adar’s systems, equipment, processes, business or intellectual property; (b) Customer does not cooperate with Adar’s reasonable investigation of any suspected violation of this Agreement; (c) there is an attack on Customer’s server(s), Customer’s server is accessed or manipulated by a third party without Customer’s consent, or there is another event for which Adar reasonably believes that the suspension of Services is necessary to protect the Adar network or Adar’s other customers; (d) Customer fails to pay fees when due; or (e) if required by law. Adar will give Customer advance notice of suspension of at least twenty-four hours unless Adar determines in Adar’s reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Adar, its customers or others.
6.5 Post Termination Obligations. Adar will continue to provide billable services hereunder to the effective date of any such termination and, subject to compensation at Adar’s then hourly rates, will cooperate with Customer to provide for an orderly transition of Adar’s services to Customer at the time of any such termination. Promptly after the date of any such termination Adar will render a final billing to Customer and Customer will pay the same.
7.1 Confidential Information. Each party understands and acknowledges that any data or information, oral or written, that relates to the other’s research, development or business activities (including without limitation any unannounced products and services, other clients, suppliers, and service providers, business processes and plans, finances, internal operations) which is disclosed or otherwise made available to the other party (collectively, “Confidential Information”) represent valuable confidential information entitled to protection as trade secrets. Each party will keep confidential, will not disclose, and will protect from unauthorized disclosure by its employees and agents, Confidential Information and all copies or physical embodiments thereof in any media in its possession, and will limit access to Confidential Information to those who require such access in connection with this Agreement. Each party will secure and protect the Confidential Information and any and all copies and other physical embodiments thereof in any media in its possession in a manner consistent with the steps taken to protect its own trade secrets and Confidential Information, but not less than a reasonable degree of care. Each party will take appropriate action with its employees who are permitted access to the Confidential Information to satisfy its obligations hereunder.
7.2 Exceptions. The confidentiality obligations set forth above will not apply to (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information received from a third party under no confidentiality obligation with respect to the Confidential Information or (iv) information required to be disclosed under administrative or court order or in arbitration or litigation arising out of this Agreement.
8.1 Indemnification Obligations. Each party (“Indemnifying Party”) will indemnify, defend and hold the other party and its stockholders, directors, employees and agents harmless from and against all damages and expenses of any kind (including reasonable attorneys’ fees) (collectively, “Damages”), incurred for third party claims arising out of or in connection with (i) infringement by the Indemnifying Party of any United States Intellectual Property Rights (as defined in Section 10.1) of any third party, (ii) any material misrepresentation or breach of any material representation, warranty or obligation by the Indemnifying Party under this Agreement, or (iii) any negligent or unlawful act by the Indemnifying Party in its performance of this Agreement, except in each case to the extent that such Damages arise out of any action by the Indemnified Party.
8.2 Indemnification Procedures. A party seeking indemnification will promptly notify the other party in writing of any claim, provided, that failure to give notice will only relieve the Indemnifying Party of liability if the Indemnifying Party has suffered actual material prejudice by such failure. The Indemnifying Party will (i) control the defense of any such claim; (ii) reimburse the Indemnified Party for any reasonable legal expenses directly incurred in such defense, as such expenses are incurred; and (iii) have the right to consent to judgment on, or otherwise settle, an indemnified claim with the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; provided, that the Indemnified Party may withhold its consent if the judgment or settlement imposes an unreimbursed or continuing obligation on the Indemnified Party or does not include an unconditional release of each Indemnified Party.
9.1 Warranties. Adar warrants that (i) it will provide the Services in a professional manner, in accordance with generally accepted industry standards and in conformance with the provisions of this Agreement (provided that Customer must notify Adar of any breach of this subparagraph (i) within fifteen (15) days of performance of the affected Services) and (ii) Services will not infringe any United States Intellectual Property Rights of any third party.
In case of a breach of a warranty set forth in this Section 9.1, in addition to the indemnification obligations set forth in Section 8, Adar will, as its sole obligation or liability to Customer: (1) procure for Customer the right to continue to use the affected Services, (2) rework, replace or modify the affected Services so that they conform with this Section 9.1 or (3) if Adar is unable to do either of the foregoing on a commercially reasonable basis, refund the fees paid by Customer for the affected Services.
9.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (I) THE SERVICES ARE PROVIDED AS IS AND AS AVAILABLE AND (II) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADAR DISCLAIMS ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES.
The Services do not include, and Adar will not provide access to any hardware or software not set forth on a Service Order. The Service is limited to the hardware, software, data storage, bandwidth and user access set forth on the applicable Service Order. Adar only provides technical support, additional user access, data storage, and bandwidth to the extent specified on a Service Order.
Adar is not responsible to Customer for unauthorized access to Customer data or the unauthorized use of the Services unless the unauthorized access or use results from Adar’s failure to meet its security obligations stated in this Agreement. Customer is responsible for the use of the Services by any of its employees, or by any person to whom Customer has given access to the Services, and any person who gains access to Customer data or the Services as a result of Customer’s failure to use reasonable security precautions, even if that use was not authorized by Customer. Adar is not responsible for unauthorized access to Customer’s Service Email Address, and Customer will be held responsible for the contents of any messages originating from the Service Email Address, including without limitation authorization of any Services.
9.3 Exclusion of Liability. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY INCLUDING NEGLIGENCE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.4 Limitation of Liability. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, EACH PARTY’S LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (EXCLUDING ACTIONS TO COLLECT UNPAID FEES) WILL NOT EXCEED THE FEES ACTUALLY PAID TO ADAR UNDER THE SERVICE ORDER GIVING RISE TO SUCH CLAIM.
10.1 Adar Property. Customer acknowledges that, as between Customer and Adar, except to extent of the limited license granted below, Adar owns all right, title and interest in any and all: (i) proprietary business processes related to the Services, (ii) Adar Confidential Information and (iii) copyright, patent, trademark, trade secret and other intellectual property rights (“Intellectual Property Rights”) with respect to the Services provided that Adar grants Customer a limited, non-exclusive, non-transferable right and license to use such Intellectual Property Rights solely to the extent necessary to use Services. Customer understands and agrees that its use of or access to any of the foregoing Adar property in connection with this Agreement will not create in it any right, title or interest, in or to such property, and that all such use or access and goodwill associated with any such use or access will inure to the benefit of and be on behalf of Adar.
11.1 Force Majeure. Adar will not be responsible for any delay or failure in performance resulting from acts beyond its control including but not limited to an act of God; an act of war, sabotage or terrorism; a riot or other civil disturbance; outages of electrical, telecommunications or computer services provided by third parties that are not within Adar’s control; an epidemic, fire, flood, extreme weather condition, or other disaster; an act of government; delays in transit or delivery; or labor shortage, labor unrest, strike or lockout.
11.2 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all the necessary power and authority to enter into and perform its obligations under this Agreement and (b) this Agreement has been duly authorized, executed and delivered by it and its execution and delivery of this Agreement, and the performance of its obligations and duties hereunder, will not conflict with or result in any violation or breach of, or constitute a default (or give rise to any right of termination, cancellation or acceleration) under, any terms, conditions or provisions of agreement or other instrument or obligation to which it is a party or by which any of its properties or assets may be bound, except for such violations, breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on it and its ability to perform its obligations under this Agreement.
11.3 Independent Contractor. Adar and Customer are and will remain independent contractors. This Agreement does not constitute a partnership. Neither party is a franchisee, agent or legal representative of the other for any purpose, and neither party has the authority to act for, bind or make commitments on behalf of the other.
11.4 No Assignment. Neither party may sell, transfer, assign, or subcontract its rights or obligations under this Agreement without the express written consent of the other party. Any attempt to do so without such consent will be null and void. Notwithstanding the foregoing, Adar may, without Customer’s consent, assign this Agreement and its rights and obligations hereunder in connection with (i) a merger, combination, consolidation or similar business combination involving Adar, (ii) a sale of all or substantially all of Adar’s assets, or (iii) a sale of a majority of Adar’s outstanding voting securities.
11.5 Amendments in Writing. No amendment, modification, or waiver of any provision of this Agreement will be effective unless set forth in a writing that refers to this Agreement and is executed by authorized representatives of each party. No failure or delay by any party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.
11.6 Notices. Any notice to be given under this Agreement will be in writing, will be deemed given upon receipt, and will be delivered in person, by e-mail or by overnight delivery service with proof of delivery, to the address set forth in the Service Order (or such other address previously designated by the receiving party by written notice) to the attention of the receiving party’s designated primary contact.
11.7 Governing Law; Dispute Forum. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois. The first party initiating any legal action under this Agreement will commence that action in the state or federal courts located in Chicago, Illinois, and each party agrees to the exclusive jurisdiction of such courts with respect to any dispute arising under this Agreement.
11.8 Entire Agreement; Severability. This Agreement, together with the schedules, amendments, and other attachments, contains a full and complete expression of the rights and obligations of the parties. This Agreement supersedes any and all other previous agreements, written or oral, made by the parties concerning its subject matter. If any provision of this Agreement is held by a court or arbitration panel of competent jurisdiction to be unlawful, the remaining provisions of this Agreement will remain in full force and effect to the extent that the parties’ intent can be lawfully enforced. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any Customer purchase order will be subject to the terms of this Agreement and that any acceptance of a purchase order by Adar will be for acknowledgment purposes only and none of the terms set forth in the purchase order will be binding upon Adar.
11.9 Headings. The headings to these Terms have been included solely for references and are to have no force or effect in interpreting the provisions of the Terms.
11.10 Survival. Sections 3.6, 6.5 and 7 through 11 will survive termination of this Agreement.