Reasonable Frequency of Use: Customer accepts that if in the reasonable opinion of DDC and upon mutual agreement, any particular user’s requests that exceed a reasonable frequency will be excluded from this Agreement until such time as the user has received additional training.
Customer Default: If Customer fails to perform or fulfill any obligation under this Agreement, Customer shall be in default of this Agreement. Subject to any statute, ordinance or law to the contrary, Customer shall have seven (7) days from the date of notice of default by DDC to cure the default. In the event Customer does not cure a default, DDC may at DDC’s option (a) cure such default and the cost of such action may be added to Customer’s financial obligations under this Agreement; or (b) declare Customer in default of the Agreement. If Customer shall become insolvent, cease to do business as a going concern or if a petition has been filed by or against Customer under the Bankruptcy Act or similar federal or state statute, DDC may immediately declare Customer in default of this Agreement. DDC will hold Customer liable for the balance of all remaining monthly payments that would have been payable under this Agreement during the unexpired term then in effect.
Non-Payment: If any amount due under this Agreement is more than 30 days late, Customer agrees to pay DDC a monthly finance charge of 2% on any unpaid balance until the outstanding balance is paid in full. Customer will be liable to DDC for any costs and or expenses incurred directly or indirectly, including but not limited to fees and expenses associated with a collection agency, attorney, or court costs, in collection of any amounts due and owing to DDC.
Intellectual Property: Upon termination or expiration of this Agreement, for whatever reason, each of the Parties hereto shall immediately cease using any and all Confidential Information of the other party related to this Agreement, unless specifically authorized, in writing by such other party, and shall promptly return to such other party any and all of such information in its possession, and shall not publish or reveal, use or divulge, directly or indirectly, any of such information unless specifically authorized, in writing, by such other party. Without limiting the generality of the foregoing, the obligation to promptly return Confidential Information shall include, but not be limited to, the obligation to promptly erase any and all of such Confidential Information, and all images, compilations, copies, summaries or abstracts of such information, from computer storage, systems and related storage devices, tools and servers.
Email Marketing: DDC may use Customer email addresses for the purpose of providing information about DDC, relevant industry news, and technology best practices. DDC is committed to keeping Customer e-mail addresses confidential. As such, DDC does not sell, rent, or lease e-mail subscription lists to third parties. DDC will not provide e-mail addresses to any third-party individual, government agency, or company at any time unless compelled to do so by law. Customer may opt out of email marketing at any time.
Warranties: DDC MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, REGARDING THE FUNCTIONALITY OF HARDWARE OR SOFTWARE, BUT INSTEAD RELIES ON THE WARRANTIES PROVIDED BY THE MANUFACTURER OF EACH PRODUCT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, DDC DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
DDC hereby warrants that any products or materials to be installed by DDC under this Agreement shall be performed or installed by DDC in a workmanlike manner, consistent with generally prevailing industry standards for comparable services, and in compliance with the requirements of this Agreement.
Malicious Events: If a security system for Customer’s network is included within the Services to be provided by DDC, DDC agrees to use commercially reasonable efforts to protect Customer’s network from malicious attack by computer viruses, computer worms and/or computer hackers (collectively, “malicious activities”). However, Customer understands that no security system can guarantee complete protection against malicious activities as such attacks often involve the intentional action by third Parties to invade and injure computer systems. Therefore, Customer agrees to hold DDC harmless from any loss, injury or damage to Customer or any hardware, software, and/or computer data of Customer caused by such malicious activities.
Limitation of Liability: Customer will defend, indemnify and hold DDC, its affiliates, and each of their respective owners, directors, officers, employees and agents, harmless from and against all third-party claims, suits, expenses, losses, demands, actions, causes of action, judgements, costs and reasonable attorney’s fees and expenses of any kind or nature for any and all damages of any kind arising from or related to any us of the service(s) or otherwise arising under this Agreement. In no event will DDC be liable for any loss of profits or for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, for any cause of action, whether in contract or tort, arising out of its provision of services or failure to provide services under this agreement, whether advised of the possibility of such damages or not. DDC’s maximum liability for any damages arising out of or related to this service agreement will not exceed the total charges for the service(s) provided under this service agreement during the six (6) months immediately preceding the month in which such liability arises.
Assignment: Neither this Agreement nor Customer’s rights hereunder are assignable except with DDC’s prior, written consent.
Force Majeure: Failure by either of the Parties to perform its obligations under this Agreement (other than Customer’s payment obligations), which arises from a cause(s) beyond its reasonable control, including labor disruption, malicious event, communication outage, internet outage, interruption of service, breach of contract by a third party provider of goods or services to DDC, fire, threatened or actual act of terrorism, war, natural disaster, or act of nature (Force Majeure) shall be deemed a breach of this Agreement. In such event, this Agreement shall continue in full force and effect.
Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
Severability: If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
Arbitration: All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration within Lancaster County, Pennsylvania or another location mutually agreeable to Customer and DDC. An award of arbitration may be confirmed in a court of competent jurisdiction.
Waiver of Rights: The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. The acceptance of payments by DDC does not waive DDC’s right to enforce any provisions of this Agreement.
Independent Contractor: DDC shall conduct its business under this Agreement as an independent contractor and this Agreement creates no relationship of principal and agent, partner, joint venture, employer, employee or any similar relationship. DDC acknowledges it has paid no fee or sum for the rights to resell the Services and that it does not have any authority to act on Customers behalf. DDC will not represent itself to be an agent for Customer and will not attempt to create any obligation or make any representation on behalf of or in the name of Customer.
Non-Disclosure: Customer acknowledges that DDC has invested considerable time and effort in the development, marketing, presentation and delivery of this ReThink IT Program, this Agreement and all relevant and related terms and conditions contained herein; and further acknowledges that as such, all information related to the ReThink IT program, this Agreement and all relevant and related terms and conditions contained herein are proprietary and confidential; Therefore, Customer acknowledges that it will have no rights to photocopy, disseminate, distribute, convey or release to any 3rd Party any information presented related to the ReThink IT program, this Agreement and all relevant and related terms and conditions contained herein without the express written consent of DDC.
Non-Solicitation: During the term of any Agreement, and for a period of 36 months thereafter, the Customer agrees to not, directly or indirectly, solicit, recruit or employ any employee of DDC without the prior written consent of DDC.
DDC Holidays: The following are the DDC observed holidays.
- New Year’s Day* (Observed)
- Memorial Day
- Independence Day* (Observed)
- Labor Day
- Thanksgiving Day
- Christmas Day* (Observed)
Extraordinary Events:
- DDC is not responsible for any setup, installation, configuration of support of your covered devices if any of the following criteria are the reason for the failure.
- Act of God such as a Natural Disaster, Wind, Water, Lightning etc.;
- Site Infrastructure issues such as fire, water damage, collapse, etc.;
- Neglect or misuse, such as pouring a soda on the server or other hardware;
- Electrical Surges that may be caused by any internal or external reason;
- Malicious acts, Terrorism, Burglary, and Damage caused during transportation;
- Servicing a Virus on a machine that does NOT contain approved anti-virus,anti-malware, endpoint detection software;
- Service or repair made necessary by bugs released by software vendors e.g. adverse effects from installing updates or service packs;
- Service and repair made necessary by the alteration or modification of equipment other than that authorized by DDC.
