This MASTER CLIENT AGREEMENT (the “Agreement”) is entered into between Yankee Tech Digital, LLC, a Florida limited liability company (‘Provider”) and the party that executed the associated Order (“Client”). The date on which Client signed the Quote shall be the “Effective Date” of this Agreement.
1 SCOPE OF AGREEMENT. This Agreement serves as a master agreement and applies to Client’s and its Affiliates’ purchases from Provider, or any of its Affiliates, of services (“Services”), as well as licenses for software, hardware, support and maintenance services, labor services and/or subscription services (collectively, “Product”). For purposes of this Agreement, “Affiliate” means any entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or under common control with Client or Provider, as the case may be. Subject to the terms and conditions of this Agreement, Provider will provide you with Product(s) pursuant to any Order accepted by Provider during the Term. The provider will use commercially reasonable efforts to provide you with the Product for which you have Ordered. Client shall request Services hereunder by issuing to Provider a proposed order (“Quote”) (in the form provided or approved by Provider). Upon Provider’s acceptance of a Quote, such Quote shall be deemed an “Order” hereunder and shall be deemed incorporated into this Agreement. A Quote shall be deemed accepted upon the earlier of (a) Provider’s acceptance of such Quote in writing; (b) Provider’s commencement of delivery of the Product(s) set forth in such Quote; or (c) Provider’s acceptance of payment for the Products stated in the Quote. By accepting the Quote Provider agrees to provide Products in conformance with the respective Order. Client accepts this Agreement by execution of any Quote or Order. In the event Client cancels an Order prior to Provider actually delivering the Product(s), and in the event that Provider incurs costs related to same, then Client shall reimburse Provider for such costs actually incurred. Client understands and agrees that certain Products may not be available in all areas and that Provider, upon entering into an Order with Client may, at its own discretion, utilize an Affiliate to deliver the applicable Product. The Products to be rendered to Client may be further described in one or more Addendums, which will be deemed incorporated into this Agreement. In the event of any conflict between the terms of any applicable Addendum and those of this Agreement, the terms of this Addendum will prevail.
2 TERM AND TERMINATION. This Agreement will begin on the date that a Quote is accepted by Provider and becomes an Order, as defined above, and will continue to remain in full force and effect for Products provided. If the Product is for an ongoing service the Term for that service may more specifically be stated in the applicable Addendum. Nonetheless, if the Product is an ongoing service, Client may terminate this Agreement and the applicable Addendum, if any, with thirty (30) days’ written notice to Provider stating the reason for terminating and providing Provider the right to cure the concern within the thirty (30) day notice. Provider may: (a) terminate a specific Order if Client fails to pay any applicable fees due for that Order within thirty (30) days; and/or (b) terminate this Agreement or an Addendum if Client commits any other breach of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice from Provider. Upon any termination of this Agreement, Addendum, or the right to use a Product, Client will immediately uninstall (if the Product is software) and cease to use the terminated Product and, upon Provider’s written request, immediately return such Product to Provider, together with all related documentation, and copies thereof. Upon written request of Provider, Client will promptly certify in writing to Provider that all copies of the Product have been returned and that any copies not returned have been destroyed. If an Order is terminated, Client will promptly pay Provider for Services rendered, any and all hardware ordered for Client, and expenses incurred through the termination date. The provider may terminate any license granted for a Deliverable (as defined below) if (i) Client does not pay Provider for that Deliverable in accordance with this Agreement, or (ii) if Client materially breaches any part of Section 4 of this Agreement.
3 PAYMENT AND DELIVERY. Client will pay Provider all recurring and non-recurring charges, fees and taxes due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable under this Agreement are exclusive of sales, use, customs duties, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of Provider). All Fees will be detailed in an Order. Unless otherwise stated in an Order, Client agrees to pay or reimburse Provider for all actual, necessary, and reasonable expenses incurred by Provider in performance of such Services to deliver on the Services and Products. The provider will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Order. If Client payment information is not accurate, current, and complete and Client do not notify Provider promptly when such information changes, Provider may suspend or terminate Services with notice, and only after thirty (30) days of non-payment. Provider charges twenty-five dollars ($25) for returned or NSF checks, including ACH payments. The provider will not defer any charges while Client awaits reimbursement, subsidy, discount or credit from Provider or any third party, and Client shall have the obligation to pay all Fees regardless of the status of any such reimbursement, subsidy, discount or credit. Upon thirty (30) days’ written notice to Client, Provider shall have the right to increase Fees for any Service. The provider may charge a late fee for any amounts which are not paid when due. The late fee will be the greater of: i) twenty-five dollars ($25); or ii) five percent (5%) of the Order or recurring Fee amount. Client shall be responsible for all costs of collection (including reasonable attorneys’ fees, expenses, and costs) to collect overdue or past due amounts. If Provider fails to present a charge in a timely manner, such failure shall not constitute a waiver of the charges for the Fees to which it relates and Client shall pay such invoice in accordance with these payment terms. Unless Client disputes an overcharge within 30 days from the original invoice or bill, Client understands and agrees that Fees are considered accurate.
4 PROPRIETARY RIGHTS AND CONFIDENTIALITY.
4.1 Proprietary Rights. Provider, or its Affiliates or licensors, retain all right, title and interest in any and all intellectual property, informational, industrial property and moral rights in the Product, and copies thereof. Provider neither grants nor otherwise transfers any rights of ownership in the Product to Client. The Product is protected by applicable copyright and trade secrets laws, and other forms of intellectual property, informational and industrial property protection.
4.2 Product. The client may only use and disclose Product in accordance with the terms of this Agreement and applicable Addenda. Provider reserves all rights in and to the Product not expressly granted in this Agreement. Client may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product’s source code 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 Products, without Provider’s prior written approval. Except as expressly authorized in this Agreement or an Addendum, Client may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or service provider business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
4.3 Pre-Existing License Agreements. Any software product provided to Client by Provider as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party (such agreement, an “SLA”), will continue to be governed by the SLA. The fulfillment of the Services will not relieve or alter the obligations or responsibilities of either party or of any third party in regards to the software product licensed under the SLA.
5 ALLOCATION OF RISK.
5.1 All digital dental equipment, hardware, software, servers, laptops, and workstations carry the manufacturer’s warranty. These warranties are provided by the manufacturer and are assigned to you by Provider. Provider does not directly provide a warranty for servers, laptops, and workstations.
5.3 Disclaimer of Warranty. CLIENT ASSUMES FULL RESPONSIBILITY FOR USE OF THE SERVICES AND PRODUCTS AND USES THE SAME AT ITS OWN RISK. PROVIDER EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE CONTENT TRANSMITTED THROUGH THE SERVICE AND PROVIDER EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND PRODUCTS, ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY PROVIDER, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS, PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, WITHOUT DEGRADATION OR LOSS OF CONTENT, DATA OR INFORMATION AT ANY TIME. PROVIDER DOES NOT WARRANT THAT ANY SERVICE OR PRODUCT PROVIDED BY PROVIDER WILL PERFORM AT A PARTICULAR SPEED. IN ADDITION, CLIENT ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS MAY NOT BE SECURE. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT ANY DATA, MATERIAL OR TRAFFIC CARRIED, UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CLIENT’S OWN DISCRETION AND RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S OR AN END USER’S COMPUTER SYSTEM OR EQUIPMENT OR LOSS OF SUCH DATA, MATERIAL OR TRAFFIC DURING, OR THAT RESULTS FROM, CLIENT’S OR ITS AFFILIATES USE OF THE SERVICE INCLUDING. CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER’S THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CLIENT UNDER THIS AGREEMENT AND PROVIDER DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS.
5.2 Limitation of Liability. IN NO EVENT SHALL PROVIDER BE LIABLE TO CLIENT, AN AFFILIATE OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF INCOME, ARISING OUT OF OR RELATING TO THIS MASTER AGREEMENT, SERVICES OR PRODUCTS, REGARDLESS OF WHETHER PROVIDER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER’S AGGREGATE LIABILITY FOR ANY REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE LIMITED TO THE FEES PAID FOR SERVICES OR PRODUCTS UNDER THE ORDER THAT IS THE SUBJECT MATTER OF THE CLAIM, OR IF THE SERVICE IS CONTINUING IN NATURE, THE AMOUNT SHALL NOT EXCEED THE ONE (1) MONTH OF REGULAR RECURRING FEES PRECEDING THE DATE THE CLAIM ARISES. IN NO EVENT SHALL PROVIDER’S AFFILIATES, THIRD PARTY SERVICE PROVIDERS OR SUPPLIERS HAVE ANY LIABILITY TO CLIENT HEREUNDER. PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE SERVICE, INCLUDING THE INABILITY TO REACH EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY SYSTEM. CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICE CHARGES WOULD BE MATERIALLY HIGHER WITHOUT THE LIABILITY LIMITATIONS CONTAINED IN THIS MASTER AGREEMENT. IN ADDITION, CLIENT ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS ARE REASONABLE AND THAT CLIENT HAS READ AND UNDERSTANDS THESE LIMITATIONS.
6 SERVICES-SPECIFIC TERMS.
6.1 All Necessary Rights. If, as part of Provider’s performance of Services, Provider is required to use, copy or modify any third-party system (hardware, software or other technology) provided or licensed to Client, then prior to Provider’s performance of such Services, Client will acquire all rights necessary for Provider to perform such Services.
6.2 Non-Solicitation. During the term of this Agreement, and for a period of six (6) months thereafter, Client will not solicit for employment any employees of the Provider or its Affiliates who, within six (6) months prior to such solicitation: (a) directly performed under this Agreement, (b) had substantial contact with the Client in relation to this Agreement, or (c) the Client became aware of due to, or derived from information learned through the performance of, this Agreement. For this purpose, “solicitation” does not include contact resulting from indirect means such as public advertisement, placement firm searches or similar means not directed specifically at the employee to which the employee responds on his or her own initiative. Notwithstanding the foregoing, either party may at any time, directly or indirectly, solicit and hire any employee of the other party if such employee did not resign but was terminated by the other party. The parties acknowledge and agree that a breach of this “Non-Solicitation” clause will not give rise to a right of termination of this Agreement; the party not in breach will only have the right to seek and recover direct damages from the breaching party.
6.3 Indemnity Client agrees to defend, indemnify and hold harmless Provider, its Affiliates, its service providers and suppliers and their respective officers, directors, employees and agents, from and against all liabilities, losses, costs, damages and expenses, including reasonable attorneys’ and other professionals’ fees, arising out of any claim arising out of or relating to (a) the use of the Service and/or Products, including but not limited to a breach of confidentiality, data, or individually identifiable health information; or (b) personal injury, death, property damage, or tort from any cause, including but not limited to claims by Client’s employees, agents, tenants or invitees.
7 MISCELLANEOUS/OTHER PROVISIONS.
7.1 Severability. Should any provision of this Agreement be invalid, or unenforceable, the remainder of the provisions will remain in effect.
7.2 Notices. Unless otherwise provided, notices to Client may be made via email to the email address on file with Provider, or by regular mail to the address provided to Provider by Client. Notice to Provider must be made by mail to the address provided in this Agreement.
7.3 Assignment. The client may not assign this Agreement or any rights granted under this Agreement to any third party, except with the prior written consent of Provider. The provider may assign this Agreement and any and all rights herein without the consent of Client.
7.4 No Waivers. Failure of Provider to require performance by the other party under this Agreement will not affect the right of Provider to require performance in the future. A waiver by Provider of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach.
7.5 Force Majeure. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, power outage, power surge, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement. This provision does not apply to the payment of Fees.
7.6 Independent Contractors. The parties are independent contractors of each other, and no partnership or joint venture is intended or created by this Agreement.
7.7 Entire Agreement. This Agreement, together with each Addendum and Order, constitutes the entire agreement between Client and Provider and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, concerning this subject matter. In the event of a conflict between this Agreement, any Addendum or an Order, the specific terms of the Order or applicable Addendum will control. Any terms not addressed in the Order or the Addendum, this Agreement will control.
7.8 Referencing. Client agrees that Provider and its Affiliates may refer to Client as a Client of Provider, both internally and in externally published media. The client also agrees to instruct appropriate personnel within its organization that Client has agreed to receive and participate in calls, from time to time, with potential Clients of Provider who wish to evaluate the technical specifications of Product.
7.9 Dispute Resolution and Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Florida exclusively and without reference to principles of conflict of laws. Any action or claim to enforce this Agreement shall be held and resolved in the forum of the State of Florida, in Dade County. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein and the remainder of this Agreement shall remain in full force and effect. Excluding any third party claims, claims under this Agreement must be initiated not later than two (2) years after the claim arose. There are no third party beneficiaries to this Agreement.
7.10 Amendment. The provider may amend, change or alter this Agreement and Addendums. Such amendment, change or alteration shall become effective upon delivery. Upon entering into each new Order, the then current Master Client Agreement shall become the existing and valid Master Client Agreement without requiring a new signature. Client acknowledges and agrees to the then current Master Client Agreement upon entering into each new Order.