THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CLIENT” OR “YOU”), REPRESENTS AND WARRANTS THAT HE OR SHE HAS FULL AUTHORITY TO BIND THE CLIENT TO THIS AGREEMENT. UNLESS THE CLIENT HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE OF AVASEK SERVICES, THESE TERMS AND CONDITIONS GOVERN YOUR RIGHTS TO USE AVASEK SERVICES. BY ASSENTING TO THESE TERMS (EITHER BY CLICKING, CHECKING A BOX OR PLACING AN ORDER) CLIENT ACCEPTS THESE TERMS AND CONDITIONS, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CLIENT AND AVASEK, LLC, A NEW JERSEY BASED LIMITED LIABILITY COMPANY, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY, “AVASEK”). IF CLIENT DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CLIENT, THEN DO NOT ASSENT AND CLIENT WILL NOT BE AUTHORIZED TO ACCESS OR USE AVASEK SERVICES. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE DATE SET FORTH ON AN ORDER.
These Avasek Terms and Conditions are a master agreement that cover all Avasek services but provisions regarding specific services apply only to the extent you have purchased or used such services. Client is bound to the terms and conditions of any products that are purchased from Avasek as applicable of their respective manufacturers.
“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling)
“Agreement” means these Avasek Terms and Conditions together with each order.
“Avasek Competitor” means a person or entity in the business of providing managed information technology (IT) services related to support or security that are substantially similar to or competitive with Avasek’s services.
“Avasek Tool” means any Avasek proprietary software-as-a-service, software, hardware, or other tool that Avasek uses in performing its Professional Services, which may be specified in the applicable statement of work.
“Client” means as the context requires, in addition to the entity identified on an order, any client affiliate that places an order under these Avasek Terms and Conditions, uses or accesses any offering hereunder, or benefits from the Client’s use of an offering.
“Client Contractor” means any individual or entity (other than an Avasek Competitor) that: (i) has access or use of a Product under this Agreement solely on behalf of and for Client’s Internal Use, (ii) has an agreement to provide Client (or its Affiliates) services, and (iii) is subject to confidentiality obligations covering Avasek’s Confidential Information.
“Client Contractor Services” means products, services or content developed or provided by Client Contractors, including, but not limited to, implementation services, managed services, training, technical support, or other consulting services related to, or in conjunction with Avasek’s services.
“Documentation” means Avasek’s end-user technical documentation included in the applicable services.
“Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container or virtual machine image.
“Internal Use” means access or use solely for Client’s and subject to the Section entitled Affiliates, Orders and Payment; Affiliates and the Section entitled Access and Use Rights, its Affiliates’, own internal information security purposes. By way of example and not limitation, Internal Use does not include access or use for the benefit of any person or entity other than Client or its Affiliates.
Internal use is limited to access and use by your and your Affiliates’ employees and Client Contractors (except as set forth in the Section entitled Client Contractors), in either event, solely on your behalf and for your benefit.
“Offerings” means Avasek’s professional services.
“Order” means any purchase order or other ordering document (including any SOW) accepted by Avasek that identifies Avasek’s offerings.
“Product” means any third-party software or products ordered by Client as set forth in the relevant order.
“Professional Services” means any professional services performed by Avasek for Client pursuant to a statement of work or other order. Professional services may include without limitation IT implementation and support, incident response restoration, managed security awareness training, and monitor-detect-response (MDR) services.
“Statement of Work” or “SOW” means a mutually agreed executed written document describing the professional services to be performed by Avasek for Client, deliverables, fees, and expenses related thereto.
“Subscription/Order Term” means the period of time set forth in the applicable order during which professional services may be performed.
Affiliates, Orders and Payments
Any affiliate purchasing hereunder, or using or accessing any offering hereunder, or benefiting from the Client’s use of an offering, will be bound by and comply with all terms and conditions of this agreement. The Client signing these Avasek Terms and Conditions will remain responsible for Client’s affiliates’ acts and omissions unless Client’s affiliate has entered into its own Terms and Conditions with Avasek.
Only those transaction-specific terms stating the offerings ordered, quantity, price, payment terms, subscription/order term, and billing/provisioning contact information will have any force or effect unless a particular order is executed by an authorized signer of Avasek and returned to Client.
If any such order is so executed and delivered, then only those specific terms on the face of such order that expressly identify those portions of this agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those offerings ordered on such order. Orders are non-cancellable. Any order and Avasek’s obligations and liabilities to Client are governed by, this agreement.
Payment and Taxes
Client will pay the fees for offerings to Avasek as set forth in the applicable order. Unless otherwise expressly set forth on the order, Client will pay the fees and amounts stated on each order within 30 days after receipt of the applicable invoice. Except as otherwise expressly provided in this agreement, all fees and other amounts are non-refundable. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Client shall pay all such taxes levied or imposed by reason of Client’s purchase of the offerings and the transactions hereunder, except for taxes based on Avasek’s income or with respect to Avasek’s employment of its employees.
Access & Usage Rights
Access & Use Rights
Subject to the terms and conditions of this Agreement (including Avasek’s receipt of applicable fees), Avasek grants Client, under Avasek’s intellectual property rights in and to the applicable Avasek Tools, a non-exclusive, non-transferable license (except as expressly provided in the Section entitled Assignment), to access and use Avasek’s Tools in accordance with any applicable documentation solely for Client’s internal use during the applicable subscription/order term. Not all professional service engagements will involve the use of Avasek Tools.
The access and use rights set forth in the Section entitled Access & Use Rights do not include any rights to, and you will not, with respect to any offering (or any portion thereof): (i) employ or authorize an Avasek Competitor to use or view the offering or documentation, or to provide management, hosting, or support for an offering; (ii) alter, publicly display, translate, create derivative works of or otherwise modify an offering; (iii) sublicense, distribute or otherwise transfer an offering to any third party (except as expressly provided in the Section entitled Assignment); (iv) allow third parties to access or use an offering (except for Client Contractors as expressly permitted herein); (v) create public Internet “links” to an Offering or “frame” or “mirror” any offering content on any other server or wireless or Internet-based device; (vi) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for an offering (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to an offering or its related systems or networks; (vii) use an offering to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (viii) or remove or alter any notice of proprietary right appearing on an offering. Client agrees to use an offering in accordance with laws, rules, and regulations directly applicable to Client and acknowledges that Client is solely responsible for determining whether a particular use of an offering is compliant with such laws.
Installation and User Accounts
Avasek is not responsible for installing products unless you purchase implementation services from Avasek. Avasek may create user accounts for the Client, however, the Client is liable and responsible for all actions and omissions occurring under your and your Client Contractor’s user accounts for offerings. You shall notify Avasek if you learn of any unauthorized access or use of your user accounts or passwords for any products that Avasek is providing a managed service for.
Ownership & Feedback
Avasek Tools are made available for use or licensed, not sold. Avasek owns and retains all right, title, and interest (including all intellectual property rights) in and to the Avasek Tools. Any feedback or suggestions that Client provides to Avasek regarding its offerings and Avasek Tools (e.g., bug fixes and features requests) are non-confidential and may be used by Avasek for any purpose without acknowledgement or compensation; provided, Client will not be identified publicly as the source of the feedback or suggestion.
Client authorizes Avasek to give Client Contractors the rights and privileges to the offerings necessary to enable and provide for Client’s use and receipt of the Client Contractor Services. If at any time Client revokes this authorization, to the extent the offerings provide for Client to limit the Client Contractor’s access and use of the offerings, then Client is responsible for taking the actions necessary to revoke such access and use. In the event Client requires Avasek assistance with such revocation or limitation, Client must contact Avasek Support with written notice of such revocation or limitation at firstname.lastname@example.org and Avasek will disable the Client Contractor’s access to Client’s offerings within a reasonable period of time following receipt of such notice but in any event within 72 hours of receipt of such notice.
Client Contractors are subject to the terms and conditions in the agreement while they are using the offerings on behalf of Client and Client remains responsible for their acts and omissions during such time. Any breach by a Client Contractor of this agreement is a breach by Client. Avasek is not responsible or liable for any loss, costs or damages arising out of Client Contractor’s actions or inactions in any manner, including but not limited to, for any disclosure, transfer, modification or deletion of Client Data. If Client Contractor Services are no longer available for any reason, Avasek is not obligated to provide any refund, credit, or other compensation for, or related to, the offerings.
Professional services will commence on a mutually agreed upon date. Estimates provided for professional services performed on a time-and-material basis are estimates only and not a guaranteed time of completion. Professional services performed on a fixed fee basis are limited to the scope of services stated in the applicable order.
Ownership of Deliverables
Professional services do no constitue “works for hire,” “works made in the course of duty,” or similar terms under laws where the transfer of intellectual property occurs on the performance of services to a payor. You agree that rrelative to you, Avasek exclusively owns any and all Avasek Tools, documentation, report templates, know-how, ideas and any and all other works and materials developed by Avasek in connection with performing the Professional Services (including without limitation all intellectual property rights therein and thereto)(collectively, the “Avasek Materials”) and that title shall remain with Avasek. Avasek Materials do not include any Client confidential information or other Client provided materials or data.
Avasek, LLC (hereinafter referred to as “Vendor”) will initiate a professional services project for Hyland Levin LLP (hereinafter referred to as “Client”). With regard to services provided as a fixed fee, this agreement shall remain in force until all deliverables are completed. For hourly based services, either party may terminate this agreement, with or without cause, on two days’ written notice of an intent to terminate (email shall suffice as written notice, and shall be effective upon receipt).
In connection with this Agreement, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form that is in the Recipient’s possession regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.
Restrictions on Use
Except as allowed in Section Exceptions, Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, “Representatives”), its Affiliates and their Representatives, subject to the other terms of this agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information. Within 72 hours of Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information while in Recipient’s control, Recipient shall provide Discloser with notice thereof.
Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give Discloser prompt written notice of such requirement or request prior to such disclosure; and (b) at Discloser’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure. If the Recipient is legally required to disclose the Discloser’s Confidential Information as part of: (x) a legal proceeding to which the Discloser is a party but the Recipient is not; or (y) a government or regulatory investigation of the Discloser, the Discloser shall pay all of the Recipient’s reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Recipient for its reasonable costs and fees of compiling and providing such Confidential Information, including, a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony.
Upon Discloser’s written request, Recipient shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.
Warranties & Disclaimer
Avasek will not be held liable for the failure or error of any products that Avasek sells to the Client. Product warranties, if offered, will be offered under the terms or conditions provided by the manufacturer of said product.
Avasek warrants to you that it will perform all services in a professional and workmanlike manner consistent with generally accepted industry standards. You must notify Avasek of any warranty claim for services during the period the services are being performed or within 30 days after the conclusion of the services. Your sole and exclusive remedy and the entire liability of Avasek for its breach of this warranty will be for Avasek, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming services, or (b) refund the portion of the fees paid attributable to the non-conforming services.
The express warranties do not apply if the applicable product or service: (i) has been modified, except by Avasek, (ii) has not been installed, used, or maintained in accordance with this agreement or documentation, or (iii) is non-conforming due to a failure to use an applicable update.
CLIENT ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT AVASEK DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ALL OF CLIENT’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND CLIENT AND ITS AFFILIATES WILL NOT HOLD AVASEK RESPONSBILE THEREFOR.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION (Warranties & Disclaimer), AVASEK AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AVASEK AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE OFFERINGS AND AVASEK TOOLS. THERE IS NO WARRANTY THAT THE OFFERINGS OR AVASEK TOOLS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CLIENT’S PARTICULAR PURPOSES OR NEEDS. THE OFFERINGS AND AVASEK TOOLS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER THE OFFERINGS NOR AVASEK TOOLS ARE FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE.
Client agrees that it is Client’s responsibility to ensure safe use of an offering and the Avasek Tools in such applications and installations. AVASEK DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES.
Each party agrees to indemnify, defend and hold the other party harmless for any claims, liabilities, losses, and expenses (including but not limited to reasonable attorneys’ fees) brought by third parties arising from or related to a material breach of this agreement, or the negligent, gross negligence or intentional misconduct or omission by the indemnifying party, except to the extent caused by the negligent, grossly negligent or intentional misconduct or omission of the indemnified party and to the extent disclaimed by Avasek above. The indemnifying party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
Limitation of Liability
Vendor’s services are intended to minimize the likelihood of a security breach; they do not guarantee the prevention of a breach. Incident response is an optional service that the client may hire the vendor to assist with. Except as otherwise set forth in this agreement, vendor disclaims all warranties, express or implied, with respect to the goods and services provided hereunder, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Under no circumstances shall vendor be liable to client for special, incidental, indirect, consequential, punitive or contingent damages whatsoever, including without limitation, loss or profits, injuries to persons or property, loss of use of property, or damages to which client may be liable to other persons or entities, even if vendor has been advised that of the possibility of such damages, and whether the claim, is for breach or repudiation of contract, tort, breach of warranty, negligence or otherwise. Any provision of this agreement notwithstanding, under no circumstances shall vendor’s aggregate liability to client under this agreement exceed the aggregate amount paid by client to vendor in the prior twelve (12) months of this agreement.
Suspension and Termination
This agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein. Avasek may immediately suspend Client’s use of offerings if: (i) Client or Client users are in breach of Section Access & Usage Rights; Restrictions or (ii) Client fails to pay Avasek when undisputed fees are due; provided, however, Avasek will use commercially reasonable efforts under the circumstances to provide Client with notice and, if applicable, an opportunity to remedy such violation prior to any such suspension. Either party may terminate this agreement upon 30 days’ written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period. Upon termination of this agreement for any reason: (a) Client must prompotly cease all use of offerings; and (b) Client data will be deleted in accordance with Section Confidentiality; Destruction. Sections Definitions, Access & Use Rights; Restrictions, Confidentiality, Limitation of Liability, Suspension and Termination, and General and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.
This Agreement constitutes the entire agreement between Client and Avasek concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be construed for or against any party to this agreement because that party or that party’s legal representative drafted any of its provisions
Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
Governing Law; Venue. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of New Jersey, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Camden County, New Jersey, and the parties agree to service of process in accordance with the rules of such courts. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in Avasek’s case, to recoup any payments due.
Permission to List You as a Client
Unless you direct otherwise by sending an email to us at email@example.com, which direction may be given at any time, you agree that Avasek may display your company name and logo (in accordance with any trademark guidelines you provide) as an Avasek client in a manner that does not suggest your use or endorsement of any specific Avasek professional service.
No Third Party Rights. The parties are independent contractors. This agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
Waiver, Severability & Amendments
The failure of either party to enforce any provision of this agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this agreement will remain in full force and effect. This agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other party.
All legal notices will be given in writing to the addresses in the order and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, Orders, POs, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party’s standard ordering procedures.