Innovative Data Processing Solutions, LTD.
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions shall govern and apply to all products and services furnished by Innovative Data Processing Solutions, Ltd. (“Innovative”) to you (“Customer”) pursuant to (i) the terms of any written request by Customer that is accepted by Innovative, or (ii) any service level agreement, statement of work, proposal, quote, purchase order or other written agreement (“Agreement”) between Innovative and Customer for the provision of products or services. These Standard Terms and Conditions shall supplement and be deemed incorporated into each Agreement and, in the event of any conflict or inconsistency between these Standard Terms and Conditions and any Agreement, these Standard Terms and Conditions shall govern unless such Agreement expressly states an intent to the contrary.
All software and software development, databases, database content, designs, updates, enhancements, patches, bug-fixes and related goods which are provided to the Customer under any Agreement or are generated from or by any of the goods provided under any Agreement, are referred to as the “Software” (when referring to software and databases which are the product of Innovative's work or which are supplied by Innovative, and all related documentation). All systems design, support, maintenance, consulting and other services performed for or provided to the Customer by Innovative or its agents or representatives under any Agreement are referred to as the “Services”. Any computer and peripheral equipment, and other tangible property provided to the Customer under any Agreement, are referred to as the “Hardware.”
3. Concerning Software
Innovative will provide the Services using one or a combination of original and custom programming techniques (“Innovative Software”); methods, components; generic routines and subroutines, web services, generic modules and sub-modules, generic libraries, generic quality processes and generic testing procedures used in connection with or incorporated into the Services and code previously developed by Innovative (“Generic and Pre-existing Software”) and third party software which Innovative is authorized to provide (“Third Party Software”). Innovative is and shall remain the owner of the Generic and Pre-existing Software, and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Innovative hereby grants to Customer a royalty-free, non-exclusive and transferable license (the “License”) to use the Generic and Pre-existing Software. Upon completion of, and receipt of full payment for, the Innovative Software, Innovative will assign to Customer the copyright to any Innovative Software and all rights to transfer the Innovative Software, and will deliver to Customer media containing complete copies of the then-most-current source code and object code thereto. However, all contrary provisions notwithstanding Innovative shall not in any event be prohibited from independently developing, without use of the code for the Innovative Software other than as permitted above, any software with the same or similar functionality, and shall have the absolute right to exploit any general knowledge or experience it obtains in connection with the Innovative Software. Innovative may retain one or more copies of the Innovative Software in object and/or source code form and the documentation thereto for archival purposes and other purposes permitted hereunder.
Innovative will use commercially reasonable efforts to perform Services provide Hardware in accordance with the schedule set forth in the applicable Agreement. Innovative shall not be responsible for delays which are beyond its control or which result from the delay or fault of Customer or any third party.
Customer and Innovative agree that the successful completion of Services requires their full and mutual good faith cooperation. Without limitation, Customer understands that Innovative will rely on the information furnished and to be furnished by Customer concerning its needs, existing resources and systems, and Customer agrees to make available to Innovative access to Customer’s systems and files, and the cooperation of Customer’s personnel, as Innovative may reasonably request in order to provide Services. The parties agree to work together in good faith if unforeseen circumstances or unanticipated developments occur during the pendency of any project, which unforeseen circumstances or unanticipated developments may result in a modification of scope, scheduling, pricing or acceptance criteria.
Customer shall pay Innovative in such amounts and at such times as set forth in the applicable Agreement. If the applicable Agreement does not set forth such payment terms, Customer shall pay Innovative pursuant to Innovative’s then current rate letter, which is available upon request. Customer shall pay Innovative's invoices within 30 days of the date of any such invoices, and shall, if not so paid, bear late charges from the date of the invoice in an amount equal to the lesser of (i) 1.5% per month of the overdue amount, and (ii) the greatest amount permitted by law. Customer shall pay all travel expenses of Innovative personnel at Innovative’s then current standard hourly rate and shall also pay (and indemnify Innovative against any additional taxes, fees, fines, penalties, interest or other amounts that may become due and payable in the event of Customer’s non-payment of) all sales, use, transfer and other taxes, whether federal, state or local, however designated, which are levied or imposed by reason of the transactions under these Standard Terms and Conditions, except for income taxes on Innovative's profits. Customer expressly authorizes Innovative to charge any credit, debit, bank or charge card provided by the Customer for any amount(s) more than 30 days past due. Customer shall reimburse Innovative for its attorney’s fees and other costs and expenses incurred to collect any past due amounts. Innovative shall apply all payments received first against any service charges, expenses (including attorney’s fees), late fees and interest charges, then to the principal amounts due starting with the oldest invoice(s). Innovative may terminate any previously granted License to the Customer upon Customer’s failure to pay any invoice when due, without further notice to the Customer. No delay on the part of Innovative in exercising any of its rights upon the termination of the License shall constitute a waiver thereof.
Either party may terminate an Agreement for any reason upon 15 days’ written notice to the other party. Innovative reserves the right to, and Customer agrees that Innovative may, cancel any Agreement and terminate any Services immediately, and without prior notice, in the event that Company fails to fulfill any material obligation contained in these Standard Terms and Conditions or in any other Agreement. After termination by either party for any reason, Innovative shall retain the right to recover all accrued charges due and owing by Customer to Innovative through the effective date of termination, and Customer agrees that it waives any right it may have against Innovative to offset fees payable by Customer to Innovative.
8. Warranties; Disclaimers; Limitation of Liability
Innovative does not provide any warranty as to Hardware, Third Party Software, or services provided by third parties, including but not limited to any “cloud” based services. Customer understands that it is to look only to the warranties, if any, provided by the manufacturers of such Hardware and the providers of any such Third Party Software or third party services.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN ANY AGREEMENT, INNOVATIVE DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
INNOVATIVE SHALL HAVE NO LIABILITY WITH RESPECT TO THE SERVICES, SOFTWARE, HARDWARE OR ANY OTHER OBLIGATION UNDER ANY AGREEMENT OR OTHERWISE FOR LOST PROFITS OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY SEPARATE WRITTEN WARRANTY, IF APPLICABLE, IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF INNOVATIVE FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT, DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, SERVICES, HARDWARE AND ANY AND ALL OTHER GOODS AND SERVICES NOW OR IN THE FUTURE PROVIDED BY INNOVATIVE. IN ANY EVENT, THE LIABILITY OF INNOVATIVE TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO INNOVATIVE BY CUSTOMER WITHIN THE IMMEDIATELY PRECEDING 6-MONTH PERIOD.
Any and all warranties, if any, contained in these Standard Terms and Conditions or in any Agreement shall terminate and become null and avoid if any unauthorized modifications to the Hardware or Software are made by any party other than Innovative, or if the Hardware or Software is used other than in accordance with any specifications or documentation provided by Innovative.
The Innovative Software constitutes a valuable and proprietary asset of Innovative. Customer agrees not to sell, transfer, publish, disclose, display or otherwise make available to others for any reason or purpose any source code, object code, documentation or other material relating to the Innovative Software, and to use a degree of care at least as great as it uses with its own confidential information (and no less than a commercially reasonable degree of care) to preserve the confidentiality of the Innovative Software and its code.
Innovative acknowledges that in the course of carrying out the Services it may obtain confidential or proprietary information of Customer, and agrees to use a degree of care at least as great as it uses with its own confidential information (and no less than a commercially reasonable degree of care) to preserve the confidentiality of such confidential information.
These Standard Terms and Conditions are deemed to incorporate and shall be subject to, the terms and conditions of any separate confidentiality and non-disclosure agreement entered into by and between or among Innovative and Customer. In the event of any conflict or inconsistency between such separate confidentiality and non-disclosure agreement and these Standard Terms and Conditions, the terms and conditions of the separate confidentiality and non-disclosure agreement shall govern.
10. Data Privacy
Customer acknowledges and agrees that, during the course of its provision of Services, Innovative may have access or be privy to certain private or confidential information that is protected by various federal, state and/or local laws (“Privacy Laws”), which may require that Customer provide notice to and/or receive express authorization, consent or permission from, in writing or otherwise, those individuals to whom the information pertains (“Protected Individuals”). Customer acknowledges and agrees, and represents and warrants, that it will obtain all notices, consents, authorizations and permission from each and all Protected Individuals, as required by applicable Privacy Laws and shall provide full and true copies of such documentation to Innovative upon its request.
As further consideration for Innovative’s provision of Services, Customer agrees to indemnify, defend and hold harmless Innovative, its affiliates, and their respective officers, shareholders, directors, employees, representatives and agents (collectively, “Innovative Indemnified Parties”), from and against any and all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, costs and expenses (including attorneys’ and accountants’ fees and disbursements) (“Claims”), incurred by, borne by or asserted against any of the Innovative Indemnified Parties to the extent such Claims relate to, arise out of or result from the Customer’s failure to comply with all applicable Privacy Laws, including without limitation Customer’s failure to obtain any and all required notices, consents, authorizations or permission from any Protected Individuals.
In the event of a transfer of “personal data” as defined by the European Union General Data Protection Regulation (Regulation (EU) 2016/679), together with any additional implementing legislation, rules or regulations that are issued by applicable supervisory authorities, from the European Economic Area (“EEA”) to a country outside of the EEA from Customer to Innovative, for technical support or other purposes, Customer and Innovative simultaneously shall automatically enter, without further action, into the data processing agreement (“GDPR Data Privacy Schedule”) attached hereto as Exhibit A as well as the standard contractual clauses, all of which are incorporated into this Agreement by reference.
11. Innovative Personnel
Customer recognizes that the employees and independent contractors of Innovative, and such persons' loyalty and service to Innovative, constitute a valuable asset of Innovative. Accordingly, Customer agrees not to make any offer of employment to, nor to employ or enter into a consulting relationship with, or otherwise retain, any such person whom or which provided services to Customer on behalf of Innovative, within two (2) years of the last date on which such services were provided. If Customer breaches this Section 11, Customer shall pay to Innovative, as liquidated damages and not as a penalty, an amount equal to the greater of (i) two (2) times the aggregate compensation paid to such party by Innovative during the twelve (12) month period immediately preceding the breach, and (ii) two (2) times the annual compensation offered to such party by Customer (the “Liquidated Damages”). Customer acknowledges and agrees that the harm caused by Customer’s breach of this Section 11 would be impossible or very difficult to accurately estimate as of the effective date of any such breach, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from Customer’s breach. As between Customer and Innovative, Customer's payment of the Liquidated Damages is Customer's sole liability and entire obligation and Innovative's exclusive remedy for any breach by Customer of this Section 11.
12. Infringement Indemnity
Innovative will indemnify, defend and hold harmless Customer from and against any third party action brought against Customer based upon a claim that the Generic and Pre-existing Software, as provided by Innovative to Customer under the applicable Agreement and used within the scope of such Agreement and these Standard Terms and Conditions, infringes any patent or copyright of such third party; provided that (i) Customer promptly notifies Innovative in writing of the third party claim, (ii) Customer grants Innovative sole control of the defense and settlement of the claim, and (iii) Customer provides Innovative with all assistance, information and authority required for the defense and settlement of the claim.
If Customer’s use of any Generic and Pre-existing Software is, or in Innovative’s opinion is likely to be, enjoined due to the type of infringement specified in the preceding paragraph, Innovative may, at its sole option and expense, (i) procure for Customer the right to continue using such Generic and Pre-existing Software, (ii) replace or modify such Generic and Pre-existing Software so that it is non-infringing, or (iii) if options (i) and (ii) cannot be accomplished despite Innovative’s reasonable efforts, then Innovative may terminate Customer’s rights and Innovative’s obligations with respect to such Generic and Pre-existing Software and refund to Customer any prepaid fees for such Generic and Preexisting Software.
Notwithstanding the foregoing, Innovative will have no liability for infringement claims of any kind arising from (i) any impermissible use of the Software, (ii) alteration or modification of the Software other than by Innovative; (iii) use of the Software in combination with third-party software or hardware other than as specified by Innovative, if a claim would not have occurred but for such combination; (iv) failure to use updated or modified versions of the Software provided by Innovative; or (v) Innovative’s compliance with designs or specifications provided by Customer.
THE PROVISIONS OF THIS SECTION ENTITLED “INFRINGEMENT INDEMNITY” SET FORTH INNOVATIVE’S SOLE AND EXCLUSIVE OBLIGATIONS AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ACTUAL OR ALLEGED THIRD PARTY CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Customer will indemnify, defend and hold harmless Innovative, its affiliates and their respective officers, directors, shareholders, employees, representatives and agents from and against any third party action brought against Innovative based upon a claim that content, designs or information provided by Customer to Innovative infringes any intellectual property rights of such third party; provided that (i) Innovative promptly notifies Customer in writing of the third party claim, (ii) Innovative grants Customer sole control of the defense and settlement of the claim, and (iii) Innovative provides Customer with all assistance, information and authority required for the defense and settlement of the claim.
13. Delays or Defaults
Innovative shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of Innovative are due to any cause, event or circumstance beyond Innovative’s reasonable control, including without limitation as a result of Acts of God or of a public enemy, acts of the United States or any state or political subdivision thereof, fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes, embargoes, epidemics or quarantine restrictions, shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind, delays of supplier or delay of transportation for any reason, breakdown or failure of machinery or equipment, or Customer’s delay in reporting problems or furnishing information or materials. Acceptance of delivery of goods or services shall constitute a waiver and release of Innovative by Customer for any claim for damages, setoff, discount or other liability on account of delay.
14. Relationship of the Parties
Innovative has at all times been, and shall at all times be and be deemed to be, an independent contractor of Customer. Neither Innovative nor any of its personnel shall be deemed an employee of Customer for any purpose whatsoever or entitled to any benefits provided to Customer’s employees. Nothing contained within these Standard Terms and Conditions shall be construed to render Innovative or any Innovative’s personnel as a partner or agent of, or joint venturer with, Customer for any purpose. Neither Innovative nor any of its personnel shall, under any circumstances, have any authority to act for or to bind Customer or to sign the name of Customer or to otherwise represent that Customer is in any way responsible for Customer’s acts or omissions. It is anticipated that Innovative and Innovative’s staff will perform services in various capacities for third parties other than Customer during the term of these Standard Terms and Conditions.
Any notices or communications to be delivered to Innovative must be in writing and delivered to Innovative at 3495 Winton Place, Building C, Suite 2, Rochester, New York 14623. Any notices or communications to be delivered to Customer will be delivered to the address set forth on the applicable Agreement or as otherwise provided by Customer. All notices shall be deemed effective upon receipt by the recipient.
These Standard Terms and Conditions, together with the applicable Agreement, constitute the entire agreement between Innovative and Customer regarding the services and/or products described in such Agreement. Customer may not assign its rights and obligations under an Agreement without the prior written consent of Innovative and any attempted assignment without such consent shall be null and void.
The failure or delay by Innovative to exercise or enforce any right or provision of these Standard Terms and Conditions shall not constitute a waiver of such right or provision. Any provision of these Standard Terms and Conditions that is invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof.
These Standard Terms and Conditions shall be interpreted, construed, governed by and enforced in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof. Any dispute, controversy or claim arising out of or relating to these Standard Terms and Conditions shall be brought exclusively in Monroe County, New York State and Customer hereby agrees to submit to the jurisdiction of such courts. The prevailing party in any such action shall be entitled to reimbursement by the other party for any and all legal costs, including without limitation attorneys’ fees, reasonably incurred by the prevailing party in enforcing its rights under these Standard Terms and Conditions. All rights and remedies of the parties herein are in addition to, and shall not exclude, any rights or remedies that either party may have under applicable law.
Phone: (585) 292-5070
Fax: (585) 292-1912
Mailing Address: 3495 Winton Place Building C Suite 2, Rochester, NY 14602