MASTER SERVICE AGREEMENT
Master Service Agreement
1. These terms (“Terms”) apply to Your purchases from Parallel Solutions LLC (“PARALLEL”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product“). You hereby engage and retain PARALLEL to render Services or provide Product, as more particularly set forth in the “Engagement Letter” or “ENGAGEMENT LETTER”, or subsequent Statements of Work, or any work order as agreed among the Parties (each a “Work Order”) under such ENGAGEMENT LETTER. Except as otherwise stated therein, subsequent ENGAGEMENT LETTERs or Work Orders shall be made a part of and subject to the terms contained herein. No Product or Services will be provided under these Terms alone, but will require the execution of a written or electronic ENGAGEMENT LETTER, or other mutually acceptable Work Order documentation, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes. In the event of any conflict between the Statement of Work and these Terms, the terms of the Engagement Letter will prevail over these Terms.
PARALLEL may change these Terms at any time, and we’ll notify You when we do. Using the Services after the changes to these Terms become effective means You agree to the new terms. If You don’t agree to the new terms, You must stop using the Services, contact PARALLEL and terminate any current ENGAGEMENT LETTER.
2. GENERAL REQUIREMENTS & CONDITIONS.
2.1 System. For the purposes of these Terms, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by PARALLEL pursuant to an ENGAGEMENT LETTER. To avoid a delay or negative impact on our provision of the Services, during the term of each ENGAGEMENT LETTER You agree to refrain from modifying or moving the System, or installing software on the System, unless PARALLEL expressly authorizes such activity. PARALLEL will not be held responsible or liable for changes made by client without authorization.
2.2 Maintenance; Updates. If patches and other software-related maintenance updates (“Update(s)”) are provided under a ENGAGEMENT LETTER, PARALLEL will install the Updates only if PARALLEL has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. PARALLEL will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
2.3 Third-Party Service Providers. “Third-Party Service Providers” means Services provided by an entity or a Party other than the PARALLEL in fulfillment of the ENGAGEMENT LETTER requirements whose terms and conditions PARALLEL and You may be legally bound.
Your right to use the Third-Party Services is subject to Your Agreement with us, and to Your understanding of, compliance with and consent to these Terms and conditions of any Third-Party agreements, which PARALLEL does not have authority to vary, alter or amend.
Therefore, PARALLEL may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms. PARALLEL will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Service Provider to You. The Third-Party Provider may require the PARALLEL to sign a contract with the Third-Party Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may require certain conditions and requirements upon You. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to You or attached to the ENGAGEMENT LETTER which identifies the Third-Party Service Provider. You hereby agree to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which You have consented PARALLEL to contract upon its behalf. Third-Party Provider terms and conditions link of PDF can be found at our website and/or ENGAGEMENT LETTER as applicable.
2.4 Third-Party Product Vendors- “Third-Party Product Vendors” means machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the ENGAGEMENT LETTER requirements.
PARALLEL does not own certain Third-Party Products and the use thereof is subject to certain rights and limitations of which we need to inform You. Your right to use the Third-Party Products is subject to Your Agreement with us, and to Your understanding of, compliance with and consent to these Terms and conditions of the Third-Party agreements, which PARALLEL does not have authority to vary, alter or amend.
PARALLEL will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to You, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and PARALLEL will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product. The Third-Party Product Vendor may require the PARALLEL to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”) and the terms of the Third-Party Contract may require certain conditions and requirements upon You. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to You or attached to the ENGAGEMENT LETTER which identifies the Third-Party. You hereby agree to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which You have consented PARALLEL to contract upon its behalf. Third-Party Product Vendor terms and conditions link of PDF can be found at our website and/or ENGAGEMENT LETTER as applicable.
2.5 Third-Party Support. If, in PARALLEL’s discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on Your behalf and pass through to You, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $100, PARALLEL will obtain Your permission before incurring such expenses on Your behalf unless exigent circumstances require otherwise.
2.6 Subcontractors. “Subcontractors” means third-party to whom PARALLEL contracts to provide specified services to complete the services indicated in the applicable ENGAGEMENT LETTER.
2.7 Conditions of Service. Your System is eligible for provision of PARALLEL’s Services as outlined in the ENGAGEMENT LETTER or other contractual documents, provided the System is in good condition and PARALLEL’s serviceability requirements and site environmental conditions are met:
2.7.1 You shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by PARALLEL’s representatives.
2.7.2 PARALLEL’s representatives shall have, and You shall provide full access to the Network in order to affect the necessary monitoring and/or supplemental services.
2.7.3 PARALLEL reserves the right to suspend or terminate these Terms or any ENGAGEMENT LETTER if, in its sole discretion, conditions at the service site pose a health or safety threat to any of PARALLEL’s representatives.
2.7.4 All equipment, software and licensing to be supported by PARALLEL pursuant to these Terms, must be supportable by PARALLEL and subject to patching, security updates, and manufacturer provided support.
It is the responsibility of You to promptly notify PARALLEL of any events/incidents that could impact the services defined within these Terms and/or any supplemental service needs.
PARALLEL shall provide services as defined in these Terms during PARALLEL’s regular business hours, unless otherwise specified in any subsequent ENGAGEMENT LETTER, or other contract documents, and in accordance with PARALLEL’s IT Service policies then in effect.
You agree that You will inform PARALLEL, prior to, PARALLEL making any modification, installation, or service performed on the Network by individuals not employed by PARALLEL in order to assist PARALLEL in providing an efficient and effective Network support response.
Only representatives authorized by PARALLEL will be eligible to access and service Your network. Any unauthorized access or service conducted on the network without the explicit consent of PARALLEL which results in negative network performance will not be covered by the monthly plan fee as documented in the ENGAGEMENT LETTER or other contract documents and will be billed according to PARALLEL’s labor rates as outlined in the ENGAGEMENT LETTER.
PARALLEL shall be obligated to provide service only at the Service Site(s) as outlined in the ENGAGEMENT LETTER. If You desire to relocate, add or remove locations, You shall give appropriate notice to PARALLEL of Your intention to relocate sixty (60) days in advance. PARALLEL reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by You. Such right includes the right to refuse service at the relocation and/or new site.
It is mutually agreed that PARALLEL will have no responsibility for any deficiencies in the System until the PARALLEL has had a reasonable opportunity to conduct a review the current System and to provide You with Our recommendations and You have accepted and implemented same.
2.8 Service Limitations. In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:
2.8.1 Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this Agreement. PARALLEL will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
2.8.2 Any unauthorized changes made to the network without PARALLEL’s written consent which causes issues or failures to the network, are beyond the responsibility of PARALLEL and You will be billed the full cost to restore the network to its original state.
2.8.3 Except as otherwise stated in any ENGAGEMENT LETTER, all Server, Network Device and Software upgrades are outside the scope of this Agreement.
2.8.4 Manufacturer warranted parts and labor/services are outside the scope of these Terms.
2.8.5 Unless specifically agreed to and stated in any subsequent ENGAGEMENT LETTER or other contract documents, all equipment that is not currently covered by its manufacturer’s warranty or support agreement is outside the scope of these Terms.
2.8.6 Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes.
2.8.7 Application software support is limited to the manufacturer’s products listed in the ENGAGEMENT LETTER and/or other contract documents including any and all third-party user agreements.
2.8.8 Printer maintenance support is limited to services listed in the ENGAGEMENT LETTER and/or other contract documents.
2.8.9 Virus mitigation within the scope of these Terms is predicated on You satisfying recommended backup schemes and having appropriate Anti-Virus Software with current updates. Virus removal and disinfection services if any will be outlined in full detail in the ENGAGEMENT LETTER and/or other contract documents.
2.8.10 Restoration of lost data caused by systems/hardware failure is outside the scope of these Terms, unless otherwise stated in the ENGAGEMENT LETTER and/or other contract documents.
2.8.11 These Terms and support services herein are contingent on Your permission of PARALLEL having secure remote access into Your Network. Depending on the remote access solution used, additional charges may apply to the contract.
2.9 Onboarding Process. You acknowledge and agree that PARALLEL will have no responsibility for any deficiencies in the current operating systems and infrastructure until the PARALLEL has had a reasonable opportunity to conduct a review the current system and to provide You with its recommendations and You have accepted and implemented same.
2.10 Offboarding Process. In the event of termination of Services by either party, PARALLEL will make reasonable accommodations to transfer Your account to Your new managed service provider or other authorized agent (the “Onboarding Provider”). You shall indemnify and hold harmless PARALLEL, its Contracted Subcontractors and their respective directors, officers, employees, consultants and agents for any claims or losses resulting from the activities of You or the Onboarding Provider during the transition period from PARALLEL to the Onboarding Provider, inclusive of when You obtain access to all super administrator accounts of their infrastructure.
2.11 MISCELLANEOUS Terms and conditions, including services, are subject to change by PARALLEL. PARALLEL will notify You of any such changes as provided in this Agreement. You may reject such changes by delivering written notice, via email, to PARALLEL of cancellation of the agreement within 30 days from the date of such notice. Cancellation pursuant to this paragraph shall be without penalty to You. Your continued use of PARALLEL’s services after the 30-day notice period has expired constitutes Your acceptance of revised terms, condition and/or services.
3. RESPONSE; REPORTING.
3.1. Response. PARALLEL warrants and represents that We will provide the Services, and respond to any notification received by Us of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in the applicable ENGAGEMENT LETTER (“Response Time”), except for (i) periods of delay caused by Your Downtime (defined below), Vendor-Side Downtime (defined below) or (ii) periods in which We are required to suspend the Services to protect the security or integrity of your System or Our equipment or network, or (iii) delays caused by a force majeure event.
3.2. Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by Us which will not occur between the PARALLEL’s normal business hours of 9:00 AM and 5:00 PM Monday through Friday without Your authorization or unless exigent circumstances exist, during which time We will perform scheduled maintenance or adjustments to Your network. We will use Our best efforts to provide You with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
3.3. Your Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Your actions or omissions (“Your Downtime”).
3.4. Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third-party service providers, third-party licensors, or “upstream” service or product vendors.
You and PARALLEL expressly agree that this paragraph is intended to be as broad as permitted by the laws of the State of [State Name] and that this paragraph shall be governed by and interpreted in accordance with the laws of the State of [State Name].
4. CONFIDENTIALITY AND NON-DISCLOSURE.
4.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
4.2 Your Confidential Information shall include any personally identifiable information or protected health information of Your employees, Your customers, and Your Data. You acknowledge and agree that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. You shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, You hereby agree to defend, indemnify and hold harmless PARALLEL and any affiliated company, and our respective present and former shareholders, officers, directors and employees and our attorneys and agents, and our predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of You to comply with these Terms in proper handling of protected health information not caused by PARALLEL’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify PARALLEL of the necessity of same.
4.3 Confidential Information of each Party shall include the terms and conditions of these Terms and all ENGAGEMENT LETTER’s, and/or other contract documents as well as business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes disclosed by such Party.
4.4 Confidential Information (other than Client Data) shall not include any information that:
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third-party without breach of any obligation owed to the Disclosing Party,
(iv) was independently developed by the Receiving Party.
4.5 Protection of Confidential Information. The Receiving Party shall:
(i) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,
(ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement or otherwise in any manner to the Disclosing Party’s detriment, and
(iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors and agents who need such access for purposes consistent with this Agreement.
4.6 Non-disclosure. Neither Party shall disclose these Terms or any ENGAGEMENT LETTER and/or other contract documents to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.
4.7 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
4.8 If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
4.9 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy. In the event that return or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.
5. PROVISION OF MATERIALS AND SERVICES TO PARALLEL. You agree to timely furnish, at Your own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe workspaces for purposes of PARALLEL or its contracted subcontractors, performing the Services. Client will also provide PARALLEL or its contracted subcontractors, with access to all information, passwords and facilities requested by PARALLEL that is necessary for PARALLEL or its contracted subcontractors, to perform the Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, You understand that PARALLEL or its contracted subcontractors, may be unable to perform their duties adequately.
6. RESPONSIBILITY FOR EQUIPMENT. You acknowledge that from time to time (a) PARALLEL may identify additional items that need to be purchased by You, and (b) changes in Your system may be required in order for PARALLEL to meet Your requirements. In connection therewith, You agree to work in good faith with PARALLEL to effectuate such purchases or changes, and such changes shall be set forth in a Change Order under the then current ENGAGEMENT LETTER. In the event that PARALLEL is required to purchase any assets, including computer hardware and/or software, in connection with PARALLEL providing the Services, all such assets will remain the sole property of PARALLEL, except that assets sold by PARALLEL to You or procured by PARALLEL on Your behalf shall be the sole property of You. You will take such reasonable precautions to ensure the quality, completeness and workmanship of any item or service furnished by You, and for ensuring that the materials provided to PARALLEL or its contracted subcontractors, do not infringe or violate the rights of any third-party Unless otherwise specified in the Scope of Work and/or other contract documents that it is not the intent, nor does the PARALLEL provide any type of backup of Your data. You will maintain adequate backup for all data and other items furnished to PARALLEL.
7. CLIENT DATA OWNERSHIP AND RESPONSIBILITY. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by You to PARALLEL.
8. INTELLECTUAL PROPERTY. PARALLEL retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work “Intellectual Property”. You acquire no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
8.1. You may only use and disclose Intellectual Property in accordance with the terms of this Agreement and applicable ENGAGEMENT LETTER and/or other contract documents. PARALLEL reserves all rights in and to the Intellectual Property not expressly granted in this Agreement. You may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Intellectual Property, without PARALLEL’s prior written approval. Except as expressly authorized in these Terms or an ENGAGEMENT LETTER and/or other contract documents, You may not (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense or other transfer), or (b) operate the Intellectual Property in an outsourcing or PARALLEL business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Intellectual Property – applicable installation instructions or release notes will contain the relevant details.
8.2. License Agreements.
(a) License. Subject to these Terms, PARALLEL grants You a perpetual, non-exclusive, nontransferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Your own internal use. At all times, all software on the System must be genuine and licensed, and You agree to provide us with proof of such licensing upon our request. If PARALLEL requires You to implement certain minimum hardware or software requirements (“Minimum Requirements”), You agree to do so as an ongoing requirement of PARALLEL providing our Services to You.
(b) Software Installation or Replication. If PARALLEL is required to install or replicate Your software as part of the Services, You will independently verify that all such software is properly licensed. Your act of providing any software to PARALLEL will be deemed Your affirmative acknowledgement to PARALLEL that You have a valid license that permits PARALLEL to perform the Services related thereto. In addition, You will retain the duty and obligation to monitor Your equipment for the installation of unlicensed software unless PARALLEL in a written “ENGAGEMENT LETTER” expressly agrees to conduct such monitoring.
(c) Pre-Existing License Agreements. Any software product provided to You by PARALLEL as a reseller for a third-party, which is licensed to You under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
(d) EULA. Portions of the Services may require You to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to You, then You hereby grant PARALLEL permission to accept the EULA on Your behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. You agree to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, PARALLEL is required to comply with a third-party EULA and the third-party EULA is modified or amended, PARALLEL reserves the right to modify or amend any applicable ENGAGEMENT LETTER with You to ensure our continued compliance with the terms of the third-party EULA.
You agree to hold harmless and Indemnify PARALLEL against Your violation of any of the terms and conditions included in the subject EULA.
8.3. Third-Party Products. Unless otherwise stated in ENGAGEMENT LETTER, all hardware, software, peripherals or accessories purchased through PARALLEL (“Third-Party Products”) are nonrefundable once the applicable ENGAGEMENT LETTER is placed in our queue for delivery. PARALLEL will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to You, but will have no liability whatsoever for the quality, functionality or operability of any Third- Party Products, and PARALLEL will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third-Party Products. Unless otherwise expressly stated in an ENGAGEMENT LETTER, all Third-Party Products are provided “as is” and without any warranty whatsoever as between PARALLEL and You (including but not limited to implied warranties).
9. WORKING ENVIRONMENT. You shall provide a suitable working environment for any Equipment located at Your facility. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. You shall bear the risk of loss of any Equipment located at Client’s facility.
10. PARALLEL’S EMPLOYEE’S, AGENTS OR SUBCONTRACTORS. You acknowledge that PARALLEL has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors and independent subcontractors. From the Effective Date of the last ENGAGEMENT LETTER and up to one (1) calendar year after the date of termination of any ENGAGEMENT LETTER, You shall not hire or contract directly or indirectly with any of the PARALLEL’s employees, agents or subcontractors who have communicated with and/or worked on any Service for You. You and PARALLEL mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by You of this provision. Therefore, You and PARALLEL mutually agree that in the event of a breach by You in any way of this provision, You shall pay to PARALLEL as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00). this amount is an effort by both parties to properly and reasonably assess the damages that PARALLEL would suffer as a direct result of a breach by You, taking into account the following facts and circumstances: (a) an average employee working for PARALLEL will generate significant net revenue for the PARALLEL and remain employed by the PARALLEL for an extended period of time; (b) PARALLEL will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to the PARALLEL upon such breach is virtually impossible. In light of these circumstances, You and PARALLEL mutually agree that this is liquidated damages provision represents reasonable compensation to PARALLEL for the losses that it would incur due to any such breach. You and PARALLEL further acknowledge and agree that nothing in this paragraph shall limit PARALLEL’s rights to obtain injunctive relief or any other damages including, but not limited to punitive, consequential, special, or any other damages, as may be appropriate in connection with Your breach of this section.
11. WARRANTY. PARALLEL warrants that it or its contracted subcontractors, will perform the services substantially in accordance with the specifications set forth whether under these Terms, ENGAGEMENT LETTER, and/or other contract documents or otherwise in connection with any of them. For any breach of the foregoing warranty, PARALLEL or its contracted subcontractors, will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Your written notice to PARALLEL specifying in reasonable detail such non-conformance. If PARALLEL concludes that conformance is impracticable, then PARALLEL will refund all fees paid by You to PARALLEL hereunder, if any, allocable to such nonconforming Services.
Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by PARALLEL product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than PARALLEL, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by PARALLEL (ii) misused, abused, or not operated in accordance with the specifications of PARALLEL or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than PARALLEL or persons approved or designated by PARALLEL.
Notwithstanding the above, PARALLEL does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. PARALLEL does not guarantee or promise any cost savings, profits, or returns on investment.
12. SOFTWARE HARDWARE & SECURITY. You understand and agree that data loss or network failures may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure You must maintain proper security for Your computer and information system including software and hardware updates. You will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework.
13. CLIENT CYBER SECURITY. It is understood that within the Services provided it is not the intent, nor does the PARALLEL provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for You unless otherwise specified in the Scope of Work or other contract documents. As cyber threats are always evolving it is strongly recommended that You engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in Your System. In no event, including the negligent act or omission on its part, shall PARALLEL, whether under these Terms, an ENGAGEMENT LETTER, other contract documents or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
14. TELEMARKETING & UNSOLICITED EMAILS. In no event, including the negligent act or omission on its part, shall PARALLEL or its contracted subcontractors, whether under these Terms, an ENGAGEMENT LETTER, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Your data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
15. EXTRAORDINARY EVENTS. In no event, including the negligent act or omission on its part, shall PARALLEL or its contracted subcontractors, whether under these Terms, an ENGAGEMENT LETTER, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic or other physical event.
16. RELEASE WITH LIMITATION OF LIABILITY. THIS PARAGRAPH LIMITS THE LIABILITIES ARISING UNDER THESE TERMS OR ANY ENGAGEMENT LETTER AND IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS. YOU ACKNOWLEDGE AND AGREE THAT PARALLEL WOULD NOT ENTER INTO THESE TERMS UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. YOU AND ANY OF YOUR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASOR PARTIES”) AGREES TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, AGREES TO RELEASE PARALLEL AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”) FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES. PARALLEL’S AGGREGATE LIABILITY RELATING TO ANY OF THE SERVICES SHALL BE QUANTIFIED IN THE ENGAGEMENT LETTER OR OTHER CONTRACT DOCUMENTS. TERMS OR AS DESCRIBED IN THE ENGAGEMENT LETTER. PARALLEL SHALL NOT BE LIABLE TO YOU FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THESE TERMS.
17. MUTUAL INDEMNIFICATION AND HOLD HARMLESS. EACH PARTY AGREES TO THE FULLEST EXTENT PERMITTED BY LAW SHALL AT ALL TIMES DEFEND, INDEMNIFY, PAY, SAVE AND HOLD THE OTHER PARTIES AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, SUBCONTRACTORS, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “MUTUALLY INDEMNIFIED PARTIES”) HARMLESS FROM EACH AND ANY AND ALL LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES), COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES AND ANY OTHER REASONABLE COSTS OF LITIGATION) (HEREINAFTER COLLECTIVELY, THE “CLAIMS”) THAT ANY OF THE MUTUALLY INDEMNIFIED PARTIES MAY SUFFER, SUSTAIN OR INCUR TO THE EXTENT CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE MUTUALLY INDEMNIFIED PARTIES ARISING OUT OF THESE TERMS.
THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE; AND (III) GIVING SOLE CONTROL OF THE DEFENSE AND ANY RELATED SETTLEMENT NEGOTIATIONS TO THE INDEMNIFYING PARTY WITH THE UNDERSTANDING THAT THE INDEMNIFYING PARTY MAY NOT SETTLE ANY CLAIM IN A MANNER THAT ADMITS GUILT OR OTHERWISE PREJUDICES THE INDEMNIFIED PARTY, WITHOUT CONSENT.
18. PARALLEL INSURANCE. PARALLEL agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law. Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, PARALLEL will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000). PARALLEL shall have You included in the Professional Liability policy as an additional insured. Such status will provide protection, subject to the policy terms and conditions, where liability is imposed on You as a result of the wrongful act of PARALLEL.
19. YOUR INSURANCE.
19.1. Commercial Property Insurance. You shall secure at Your own cost and expense Property Insurance for Your equipment that is part of the provisions of the service agreement.
19.2. Cyber Insurance. You shall secure and maintain for the duration of the contract Cyber Liability Insurance to insure Your cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Your specific coverage and policy limit requirements.
19.3. Mutual Waiver of Subrogation. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD PARALLEL ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT YOUR INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF SERVICE.
20. DISCLAIMERS. The express remedies set forth in these Terms will constitute Your exclusive remedies, and PARALLEL’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
EXCEPT FOR THE WARRANTIES MADE BY PARALLEL IN SECTION 11, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” PARALLEL DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
PARALLEL DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY OF YOUR REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT YOU MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO YOU, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any PARALLEL employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever.
21. SEVERABILITY. If any provision of these Terms is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms shall not render invalid the remainder of the Terms.
22. AMENDMENT. These Terms may not be amended except by a writing executed by an authorized individual of the PARALLEL.
23. RELATIONSHIP. The Parties are independent parties; and these Terms do not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture. It is further understood that there is no relationship, including but not limited to a partnership, joint venture, subcontractor or other commission-based relationship, between any party that referred PARALLEL or Client to the other party to these Terms.
24. LAW. These Terms shall be governed by and construed in accordance with the laws of the State of [State Name] without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Ohio.
25. WAIVER. Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
26. FORCE MAJEURE. Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any ENGAGEMENT LETTER because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
27. DATA ACCESS/STORAGE. Depending on the Service provided, a portion of Your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify PARALLEL if Your company requires PARALLEL to modify Our standard access or storage procedures.
28. ASSIGNMENT. You may not assign Your rights or obligations under these Terms without PARALLEL’s prior written consent which shall not be unreasonably withheld.
29. COUNTERPART AND ELECTRONIC SIGNATURES. These Terms must be executed as part of Your ENGAGEMENT LETTER and by agreeing to the ENGAGEMENT LETTER and initializing the ENGAGEMENT LETTER that you have read and understood these Terms, these Terms are now part of, and integrated into, the ENGAGEMENT LETTER, and each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Your electronic signature on the ENGAGEMENT LETTER shall have the same validity and effect as a signature affixed by Your hand.
30. ENTIRE AGREEMENT. These Terms, the ENGAGEMENT LETTER, and any subsequent ENGAGEMENT Letters constitute the entire agreement by and between the Parties regarding the subject matter contained therein and supersedes all prior and contemporaneous undertakings and agreements of the Parties, whether written or oral, with respect to such subject matter. Any and all other agreements between the Parties is subject to paragraph 1 above.