Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“Agreement”) is between Covenant Technology Solutions, Inc. (“Covenant”) and any person or entity (“Client”), know together as the “Parties”, that utilizes any Covenant Service (as defined below) whether paid or unpaid.
The Parties Agree as Follows:
- “Service” is defined when the Client engages Covenant to provide technical support, consulting, product sales and hosting services as detailed in Covenant generated proposals, project plans, Statements of Work (SOW), Client purchase orders, or other signed agreements that have been approved by the Client and Covenant. Services may be approved and documented in writing, recorded conversation, electronic signature, email, FAX or a ticket within Covenant ticketing system.
- Covenant will provide individuals and/or teams of individuals (“Consultants”), at Client’s request, to perform information technology consulting services for Client, including, but not limited to, asset disposition, desktop support, help desk support, strategic consulting, planning, project management, business process analysis and re-engineering, requirements analysis, technology evaluation, system architecture, and design, systems development and integration, application conversion and modification, software installation, network support, implementation planning, implementation support, documentation, and training.
- Covenant shall be responsible for selection and management of its personnel in the performance of the Services; however, at Client’s option, Client may review the qualifications of the Covenant personnel prior to assignment to Client’s project teams. Covenant’s services may be performed by Covenant directly, their associates or agents, or by a member of Covenant’s Partner Network.
- Covenant will make every reasonable effort to replace personnel who are unable to continue performing Services because of illness, resignation, or other causes beyond Covenants reasonable control.
- Each agreement for Services must be separately signed by both parties to be valid. The work requested will specify the Services being requested, the period of performance for delivery of the Services, price of requested Services, and terms for billing and payment for Services rendered that are not otherwise set forth in this Agreement. Price of requested Services will reflect rates quoted to Client by Covenant, pursuant to the Compensation section of this Agreement (“Compensation”).
- If Client wishes Covenant to provide Services beyond the period of performance of a valid Service agreement, or to request additional Services under a valid Service agreement, or to make any material change to existing Service agreements, Client shall provide Covenant with a written Change Order in a form acceptable to both parties. The Change Order will reference the specific Service agreement to which it applies and will specify revisions to all provisions requesting to be changed, as appropriate.
- Covenant represents to Client that it has all the licenses, technology, expertise and skill required to provide the Scope of Services to Client.
- Unless otherwise specified in a valid agreement, Client will pay Covenant a monthly, hourly, daily or annual rate as it relates to the Services for the associated period of time worked, or services provided, at the rate(s) and fees quoted in writing by Covenant and agreed to in writing by Client. The rates will be set forth in a specific Service agreement under which Covenant will provide Services.
- All product purchases, such as for hardware and software, are to be paid by the Client in full prior to Covenant ordering the product(s). All product returns are subject to purchasing sources terms, conditions, and fees for which the Client is responsible for paying in full. All products are subject to the manufacturer’s warranty. Covenant does not warrant any products.
- Applicable sales tax will be added to all invoices as required by law unless a resale certificate is on file with Covenant from Client.
- Covenant’s Normal Hours of operation are between 8am and 5pm Pacific Time (PST), Monday thru Friday excluding Federal holidays unless otherwise specified in a separate service agreement.
- For professional services, such as for projects after Normal Hours services will be charged at 1.5 times the regular rate Monday through Friday and 2 times on weekends and Federal holidays.
- If a service call, not included within a Service, is canceled by Client, or any agent of Client, within 24 hours of an appointment to provide Services by Covenant, Covenant shall charge Client a cancellation fee in the amount of one (1) hour at the standard hourly rate for such Consultant, per occurrence.
- If one of Covenant’s staff or contractors are turned away from a site for any reason and must return at another time, then a “Turn Away Fee” shall apply in the amount of two (2) hours at the standard hourly rate, per occurrence.
- Extended charges for services outside the scope of services shall be charged on an hourly or project basis.
- The hourly rate for staff and contractors is reviewed and adjusted annually by Covenant. Any rate changes for Services under and an active agreement will be issued to Client in a Change Order.
- The pricing for each Service agreement may be adjusted on an annual basis, effective on the first day of the Clients fiscal year by a percentage equal to 5%.
- When a third-party vendor (Vendor), whom Covenant purchases products or services from, increase their price to Covenant, Covenant will extend the same price increase to Client in alignment with the date the Vendor increases its pricing.
3) PAYMENT TERMS
- Invoices will be distributed to Client on or around the 1st week of each month.
- Client agrees to pay the full invoiced amount on or before the due date on the invoice.
- All invoice quantities are calculated in the last week of the billing month.
- All invoices include a 3% discount for payments made by cash, check or ACH. If paying by Credit Card, the 3% discount will be removed and charged automatically.
- Remaining unpaid amounts after the due date are subject to a one and one-half percent (1.5%) late fee assessed each month until paid in full.
- Client certifies it has enough funds available to pay all invoices relating to all approved and consumed Services.
- If a Client wishes to dispute any invoiced charge, the Client shall have 30 days from the invoice date to provide Covenant a written and signed letter of dispute that clearly indicates the charges the Client is disputing. The Client will still pay the disputed charge amount within thirty (30) days of the invoice date, and if the Client and Covenant come to an agreement on the disputed amount, Covenant will provide an adjustment on the next billing cycle.
- Client’s failure to pay any and all undisputed amounts invoiced by Covenant when due shall constitute a breach of this Agreement and Covenant shall have the right to terminate this Agreement and Services without notice immediately.
4) COVENANT IDENTIFICATION
Covenant shall furnish to Client its employer identification number, as designated by the Internal Revenue Service, as Client deems applicable.
5) COVENANT IS A INDEPENDENT CONTRACTOR
- The parties acknowledge and agree that Covenant and Client are, and at all times during this Agreement shall remain, independent contractors in relation to each other, and that neither party nor its employees or other representatives are authorized to make any representations or any commitment on the other party’s behalf unless previously authorized by such party in writing.
- Each party’s obligations to the other hereunder are exclusively contractual in nature.
- Neither this Agreement nor the performance of Services shall, or be deemed to, create a partnership, joint venture, agency, fiduciary, or employment relationship, between the parties.
- Covenant’s personnel shall not be deemed employees or agents of Client, and Covenant has and hereby retains the right to exercise full control of and supervision over the performance, employment, direction, compensation, and discharge, of any and all of Covenant’s personnel providing Services hereunder.
- Covenant shall be responsible for all employment withholding or other tax liability of any kind or nature arising in respect of Covenant’s personnel
- Covenant certifies that it is either a carrier-insured employer or a self-insured employer as provided in Chapter 656 of Oregon Revised Statutes. Covenant shall provide proof if requested of compliance with the requirements of workers’ compensation coverage before labor under this contract commences.
- Covenant acknowledges responsibility for liability arising out its negligent performance of this Agreement and shall hold harmless and indemnify Client, its directors, officers, agents and employees from and against any and all liability, settlements, loss, costs, and expenses (including reasonable attorney fees and costs) in connection with any action, suit, or claim resulting from consultants’ negligent performance of, or any failure to perform, activities under or services provided pursuant to this Agreement.
6) EMPLOYEE SOLICITATION
During the term of this Agreement with Covenant, and for one (1) year thereafter, without Covenant’s prior written consent, neither Client nor any of its representatives shall, directly solicit for employment, offer employment to, or engage as a Covenant any individual who is then employed, or any individual who was employed within the preceding six (6) months, by Covenant or any of its affiliates who was directly and materially employed by Covenant in Covenant’s provision of services pursuant to this Agreement, unless and until Client pays to Covenant, as liquidated damages and not as a penalty, an amount equal to the aggregate salary and wages (including bonus) paid by Covenant or any of its affiliates to such employee during the twelve (12) months prior to the date such employee is employed or engaged by Client; provided, however, that if the employee in question is, at the time he or she first discusses such employment or engagement with Client or at the time of such employment or engagement with Client, subject to or bound by any written employment agreement or non-competition Covenant with Covenant, this paragraph shall not authorize Client to employ or engage such employee in violation of such employment agreement or non-competition Covenant or limit Client’s liability for damages in the event Client employs or engages such employee in violation thereof.
7) TERM AND TERMINATION
- This Agreement shall commence effective on the date the Client begins using any Service, or purchase any product, and continue until the Client is no longer using any Covenant Service and has paid all invoices.
- Each Service agreement between Client and Covenant shall specify its individual term exclusive of this Agreement term. If a term is not specified in a Service a agreement, the term is 3 years and automatically renews for an equal term unless Client provides a written notice to terminate Services 90 days advance of the end of the term end date.
- Covenant reserves the right to discontinue delivery of any Service if Client does not pay an invoice for said Service within forty-five (45) days of the invoice date or thirty (30) days after written notice of failure to pay has been provided to Client. If Covenant exercises this right, Client will be liable for payment for all Services delivered, but not paid for, prior to discontinuance of any Service.
- Either party may terminate this Agreement, or any Service, for the other party’s material breach of this Agreement or the applicable Service, provided the terminating party provides the breaching party with at least 90 days’ prior written notice. The breaching party will have 90 days from the date of the termination notice to cure the breach.
- Either party may terminate this Agreement with cause immediately in the event of any of the following: Insolvency of Covenant; a voluntary or involuntary petition in bankruptcy by or against Covenant; appointment of a receiver or trustee for Covenant; or an assignment for the benefit of creditors of Covenant.
- Client may terminate a Service agreement before the end of its term, by written and delivered notice with the details of the breach, if Covenant fails to deliver the Service’s defined in an executed Service agreement to industry standard service levels, relevant to the Service provided, for greater than 60 days. Industry-standard service levels are ones defined by a recognized independent standards body or research firm who is not in conflict with Covenant for any Service provided or sold and must account for current market conditions. Upon receipt of a termination notice, Covenant will have 30 days to cure the specified breach outlined in the notification. If Covenant fails to cure the breach, the final day of Service will be sixty (60) days after the delivery of written notice.
- If the commitment term of any product sold to Client, or used to provide any Service to Client, extends beyond a termination date the Client will continue to pay for said products until the end of the product licensing term regardless of a with cause or without cause termination with Covenant.
- Damages for any breach shall be those allowed by Oregon law, reasonable and necessary attorney fees, and other costs of litigation of a trial and upon appeal and shall not exceed the cost of any provided Service to Client.
- Upon any termination by under this subsection, Client will promptly pay Covenant all outstanding obligations and liabilities due for Service’s provided up to the final termination date due. Any services provided to Client after the termination date will be at the Covenants current market rate and be subject to PAYMENT TERMS section of this agreement.
8) TERMINATION CHARGES
- Covenant, at its discretion, may charge Client termination charges if, prior to the end of the applicable Service Term
- Covenant terminates any Service or agreement for cause
- Customer terminates any Service or agreement without cause.
- Termination Charges with respect to each Service terminated during its Term shall equal, in addition to all amounts payable and due by Customer and one hundred percent (100%) of the remaining monthly fees that would have been payable by Customer if the terminated Service(s) had been provided until the end of any Agreement Term.
- Terminations with or without cause shall be subject to payment to Covenant of all outstanding amounts due for the Services, products, and any and all applicable Termination Charges.
- Covenant shall coordinate with Clients designated point of contact to develop a reasonable off-boarding plan.
- Client will immediately and return of any and all Covenant Equipment at the Clients expense.
- Client will continue to pay for all Services utilized after the termination date at Covenants current market rate.
- Covenant shall submit a final invoice statement of services for all services performed and expenses incurred since the date of the last submittal of a statement of services.
- Any early termination of any Agreement shall be without prejudice to any obligation or liabilities of either party already accrued prior to such termination.
- The rights and remedies of Client provided in this Agreement relating to defaults by Covenant shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.
- Any delay resulting in whole or part from the failure of Client or Covenant to perform its responsibilities under any Agreement or from causes beyond the control of the parties will result in a corresponding extension of the schedule for project completion.
Neither party shall be liable for delays caused by fire, accident, labor dispute, war, insurrection, riot, act of government, act of God, or any other cause reasonably beyond its control; but each party shall use reasonable efforts to minimize the extent of any such delay.
10) WORK IS PROPERTY OF CLIENT
All work performed by Covenant under any Agreement shall be the property of Client. Hardware, Software, peripherals, accessories, applications, files and any other necessary hardware, software, or knowledge shall be for the sole purpose of providing Information Technology to Client, and no other purpose whatsoever.
11) ADHERENCE TO LAWS
- Covenant shall adhere to all applicable laws governing its relationship with its employees, including but not limited to laws, rules, regulations, and policies concerning workers’ compensation, and minimum and prevailing wage requirements.
- Covenant shall not discriminate based on race, religion, color, sex, age, national origin, marital status, political affiliation, or handicap condition. Covenant shall adhere to all applicable laws, regulations, and policies relating to equal employment opportunity, nondiscrimination in services and affirmative action, including all regulations implementing Executive Order No. 11246 of the President of the United States, Section 402 of the Vietnam Readjustment Assistance Act of 1974, and Section 503 of the Rehabilitation Act of 1973.
- Covenant is a business associate of Client. Covenant shall establish reasonable polices that relate to the protection of individually identifiable health information, adhere to Client policies regarding the same, as well as state and federal laws, rules and regulations required to maintain compliance with HIPPA regulations and other related security and privacy requirements. Covenant shall contractually require all of its subcontractors comply with all applicable HIPAA/HITECH and other security and privacy rules and regulations.
12) PROFESSIONAL STANDARDS
Covenant represents and warrants that all materials and services provided pursuant to any Service agreement shall be performed in a workmanlike manner, to the best of Covenant’s abilities, and with at least the same level of competency presently maintained by others practicing in the same type of work in Consultant’s community, for the professional and technical soundness, accuracy and adequacy of all work and materials furnished under this authorization.
13) MODIFICATION, SUPPLEMENTS OR AMMENDMENTS
Covenant may change these Terms at any time, and we’ll tell you when we do. Using any Service after the changes become effective means the Client agrees to the new terms. If you don’t agree to the new terms, you must notify Covenant in writing within 30 days and negotiate new or modified terms.
14) LEGAL EXPENSES
n the event legal action is brought by Client or Covenant against the other to enforce any of the obligations hereunder or arising out of any dispute concerning the terms and conditions hereby created, the losing party shall pay the prevailing party such reasonable amounts for attorney fees, costs, and expenses as may be set by the court. “Legal action” shall include matters subject to arbitration and appeals. Any legal action related to any agreement will be brought in Clackamas County and the Parties consent to the jurisdiction there.
The parties agree that if any term or provision of this Agreement is declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected.
16) NUMBER AND GENDER
In this Agreement, the masculine, feminine or neuter gender, and the singular or plural number shall be deemed to include the others whenever the context so requires.
17) CAPTIONS AND HEADINGS
The captions and headings of this Agreement are for convenience only and shall not be construed or referred to in resolving questions of interpretation or construction.
18) CALCULATION OF TIME
All periods of time referred to herein shall not include Saturdays, Sundays and legal holidays in the State of Oregon, except that if the last day of any period falls on any Saturday, Sunday or legal holiday, the period shall be extended to include the next day which is not a Saturday, Sunday or such a holiday.
Any notices, bills, invoices, reports or other documents required by this Agreement shall be sent by the parties by United States mail, postage paid, or personally delivered to the addresses below. All notices shall be in writing and shall be effective when delivered. If mailed, notices shall be deemed effective five (5) days after mailing, unless sooner received.
The failure of Client to insist upon or enforce strict performance by Covenant of any of the terms of this contract or to exercise any rights hereunder shall not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights of any future occasion.
21) INFORMATION AND REPORTS
- Covenant shall, at such time and in such form as Client may require, furnish such periodic reports or demonstrations concerning the status of the project, such statements, certificates, approvals, and copies of proposed and executed plans and claims, and other information relative to Service agreements as may be requested by Client.
- Working papers prepared in conjunction with a Service are the property of the Client and will remain with the Covenant. Copies, as requested, shall be provided free of cost to the Client. Both parties agree to enter into a separate Mutual Non-Disclosure Agreement.
22) INTELLECTUAL PROPERTY
COVENANT shall retain all right, title, and interest, in and to any inventions (patentable or otherwise), discoveries, improvements or copyrightable works (hereinafter collectively “Intellectual Property”) which COVENANT creates in connection with its performance of Services hereunder. However, COVENANT agrees to grant, and hereby grants, to Client an irrevocable, non-exclusive, worldwide, royalty-free, license to any such Intellectual Property, to the extent necessary for Client to use any deliverables resulting from COVENANT’s Services and provided by COVENANT to Client hereunder.
23) ACCESS TO RECORDS
Client shall have access to all books, documents, papers and records of Covenant that are pertinent to this Agreement (“Records”) for the purpose of making an audit, examination, excerpts, and transcripts. The rights of Client under this Section shall survive expiration or termination of this Agreement without regard to the reason, therefore. Should Client require access to Records at any time during or after the term of this Agreement, Client shall have the right to make copies thereof, at Client’s cost, for the purposes described herein.
24) CLIENT RESPONSIBILITIES
Subject to Covenant’s compliance with those obligations set forth in a Mutual Non-Disclosure Agreement executed by the parties, Client shall furnish Covenant with all available necessary information, data, and materials pertinent to the execution of this Agreement. Client shall cooperate with Covenant in carrying out the work herein and shall provide adequate staff for liaison with Covenant.
25) LIMIT OF LIABILITY
- Client agrees that Covenant’s liability for any and all injuries, damages, claims, losses, expenses, or claim expenses (including attorneys’ fees), if any, from any cause or causes including but not limited to, Covenant’s negligence, errors, omissions, strict liability, breach of contract, or breach of warranty; provided that, damages directly resulting from the gross negligence or intentional, willful misconduct of Covenant shall not be subject to the foregoing, regardless of the form of action, shall not exceed the total amount to be paid for Services under and be limited to the Service agreement for which damages occurred. COVENANT shall not be liable to Client (or any of Client’s customers) for any delay in performance or any failure in performance hereunder caused in whole or in part by reasons beyond the control of COVENANT, including, but not limited to Client failure to furnish necessary information with respect to details known only to, or to be determined by, the Client, or other delays or failures due to Client failure to provide equipment or other materials necessary to perform the Services. COVENANT does not make any express or implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, for any work product produced in conjunction with, or as a result of, delivery of Services
- Subject to the foregoing: IN NO EVENT SHALL Covenant, ITS EMPLOYEES, AFFILIATES, CONTRACTORS, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS, REVENUE, DATA, OR USE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, INCLUDING, WITHOUT LIMITATION, LEGAL THEORIES OF CONTRACT, TORT, OR STRICT LIABILITY, EVEN IF Covenant HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- OTHER THAN THOSE WARRANTIES PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT WITH RESPECT TO THE SERVICES, Covenant EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Covenant DOES NOT WARRANT THAT THE SERVICES, Covenant EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY. Covenant MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, Covenant EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
- IN NO EVENT SHALL Covenant, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
- Indemnity by COVENANT: COVENANT hereby agrees to indemnify, defend and hold Client its owners, officers, directors, employees, agents and/or control persons, harmless, from and against any and all liabilities, obligations, losses, damages, injuries, claims, demands, penalties, actions, costs and expenses, including reasonable attorney’s fees, of whatsoever kind and nature, arising out of the installation, maintenance, delivery, or use of COVENANT’s services, or resulting from the negligence or willful misconduct of COVENANT, its owners, officers, directors, employees, agents and/or control persons, pursuant to this Agreement, if such services are provided by or equipment is used, operated, installed, maintained, or delivered, by any employee, contractor, or agent, of COVENANT. The indemnities and assumptions of liabilities and obligation herein provided for shall continue in full force and effect following the expiration or other termination of this Agreement. COVENANT is an independent contractor, and nothing contained in this Agreement shall authorize COVENANT or any other person to provide services or operate any item of equipment so as to incur or impose any liability or obligation for or on behalf of Client without Client’s express written approval.
- Indemnity by Client: To the extent permitted by Article XI, Section 10, of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300, Client hereby agrees to indemnify, defend and hold COVENANT its owners, officers, directors, employees, agents and/or control persons, harmless from and against any and all liabilities, obligations, losses, damages, injuries, claims, demands, penalties, actions, costs and expenses, including reasonable attorney’s fees, of whatsoever kind and nature, arising out of (i) any breach or failure to comply with the terms of this Agreement, or (ii) the gross negligence or willful misconduct of Client, its owners, officers, directors, employees, agents and/or control persons. Client’s duty to defend is independent of its duty to Indemnify. Client will use counsel reasonably satisfactory to COVENANT to defend each claim, and COVENANT will cooperate (at Client’s expense) with Client in the defense. Client will not consent to the entry of any judgment or enter into any settlement agreement without COVENANT’s prior written consent, which may not be unreasonably withheld, delayed or conditioned the installation, maintenance, delivery.
Covenant shall, throughout the term of this Agreement, including any renewals hereof, maintain a policy of comprehensive general liability insurance in such amounts as necessary to insure any obligation of Covenant hereunder, but in no event less than $2,000,000.00 per occurrence and $2,000,000.00 in the aggregate. Such policy shall include an endorsement for liability assumed under contract, as well as an endorsement that ensures against any unauthorized use or disclosure of electronic personal health information. Covenant shall name Client as an additional named insured and provided a certificate of insurance to Client evidencing the same upon the commencement of this Agreement and annually thereafter.
27) CONFIDENTIAL INFORMATION
In order to protect the proprietary information which may be disclosed between them, Client and COVENANT hereby agree as follows:
- Each party acknowledges that for the purpose of COVENANT providing technical personnel as requested by Client to perform Services as set forth herein (the “Purpose”), one party may disclose to the other certain company confidential and/or sensitive information (“Proprietary Information”). The party disclosing information is referred to in this Agreement as the “Disclosing Party” and the party receiving information is referred to as the “Recipient.” For the purpose of this Agreement, “Proprietary Information” shall include all information disclosed for the Purpose that (i) if in tangible form is marked as proprietary or by similar legend; or (ii) if in oral or intangible form is designated as proprietary upon disclosure and is summarized in a writing and delivered to Recipient within thirty (30) calendar days of disclosure; (iii) is information, whether or not in written form and whether or not designated as proprietary, which is known to either party as being treated as confidential or proprietary, or (iv) all protected health information (PHI), if applicable, as that term is defined by law. Proprietary Information shall include, but is not limited to (A) information concerning the Disclosing Party’s business methods, know-how and practices, personnel, customers, prospective customers and suppliers; (B) information concerning inventions, processes, methods, products, patents, patent applications, intellectual property and other proprietary rights; (C) specifications, drawings, models, samples, tools, computer programs, technical information, presentations and related materials; (D) information located on the password-protected web site of a party; and (E) all prepared notes, documents and materials which reflect, interpret, evaluate, include or are derived from Proprietary Information (“Proprietary Evaluation Material”).
- Each party acknowledges that the other party’s Proprietary Information is not generally available to the public and may contain valuable trade secrets.
- Each party shall have the right to refuse to accept any Proprietary Information of the other party. To that end, upon prior request by Recipient, the Disclosing Party shall first provide a brief abstract of the Proprietary Information to be disclosed to allow Recipient the opportunity to decide whether to accept such Proprietary Information.
- Each party acknowledges and agrees that it shall use the Proprietary Information of the other solely to carry out the Purpose. Recipient shall not decompile, disassemble, or otherwise reverse engineer, any Proprietary Information provided hereunder, and shall not use any similar means, directly or indirectly, to discover its underlying composition, structure, source code, or trade secret. Each party agrees to maintain the confidentiality of the other party’s Proprietary Information and to protect it with no less than the same degree of care it uses to protect its own Proprietary Information, in no event less than a reasonable degree of care. Each party agrees it shall not disclose the other party’s Proprietary Information to any third party without the prior written consent of the Disclosing Party, except that Recipient may disclose Proprietary Information to its employees and agents who need to know in order to carry out the Purpose and who are bound by nondisclosure agreements with Recipient which contain terms no less restrictive than the terms of this Agreement. Notwithstanding the foregoing, the Recipient may disclose Proprietary Information to the extent required by a valid court or governmental order, provided the Recipient gives the Disclosing Party prompt advance notice so that Disclosing Party may seek a protective order or other appropriate remedy. Each party acknowledges that the Proprietary Information and any other information transferred to the other party may be subject to export controls of the US Government, and to the extent, so subject, agrees not to transfer, export, or re-export, such information without the written permission of the US Government and the other party. Transfer, export, or re-export, for which US Government and the other party permission is required includes, but is not limited to, transfer to foreign nationals. Each party shall reasonably assist the other party in securing the permission described in this paragraph.
- For the purposes of this Agreement, Proprietary Information shall not include any information which: (i) is or becomes public knowledge through no wrongful act of the Recipient; (ii) can be proven by documented evidence was previously known by the Recipient without use of information obtained under this Agreement; (iii) can be proven by documented evidence was independently developed by the Recipient without use of information obtained under this Agreement; or (iv) becomes known to the Recipient from a source who had the right to disclose it without restriction.
- Upon termination of this Agreement for any reason or upon the request of the Disclosing Party, all copies of Proprietary Information in whatever form, including all Proprietary Evaluation Material, shall be returned or destroyed. At Disclosing Party’s request, Recipient shall certify in writing that all disclosed Proprietary Information has been either returned or destroyed as the case may be.
28) NO PRECEDENT
The terms of this Agreement, or actions or statements of any authorized representative of Covenant, will not establish any precedent, nor will this Agreement, or actions or statements be used as a basis to seek or justify similar terms in any subsequent situation involving any person or entity.
29) CODE OF CONDUCT
Client agrees that, when using Covenant Services, Client will follow the following code of conduct rules. If Client violates these rules, Covenant may terminate services for cause.
- Don’t do anything illegal.
- Don’t engage in any activity that exploits, harms, or threatens to harm children.
- Don’t send spam. Spam is unwanted or unsolicited bulk email, postings, contact requests, SMS (text messages), or instant messages.
- Don’t publicly display or use the Services to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity).
- Don’t engage in activity that is fraudulent, false or misleading
- Don’t circumvent any restrictions on access to or availability of the Services.
- Don’t engage in activity that is harmful to you, the Services, or others (e.g., transmitting viruses, stalking, posting terrorist content, communicating hate speech, or advocating violence against others).
- Don’t infringe upon the rights of others (e.g., unauthorized sharing of copyrighted music or other copyrighted material, or photographs).
- Don’t engage in activity that violates the privacy of others.
- Don’t help others break these rules.
30) SERVICE AVAILABILITY
We strive to keep the hosted and managed Services (such servers, applications, and desktops) up and running; however, all services, applications and equipment suffer occasional disruptions and outages, and Covenant is not liable for any disruption or loss you may suffer as a result. In the event of an outage, Client may not be able to retrieve data or access systems and applications.
31) ENTIRE AGREEMENT
This Agreement and all of its incorporated Service agreements, change orders, amendments, or addenda, constitute the entire agreement between Client and COVENANT. No other representations, whether oral or written, shall alter the terms of this Agreement; except that this Agreement may be amended if done in writing and approved by both parties.