NERDIO FOR AZURE STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (these “Terms”) govern and are incorporated into each Service Order entered into by Adar, Inc. (“Adar”) and customers (each a “Customer”) of its Nerdio for Azure (NFA) Service (the “Service”). Each Service Order and these Terms are collectively referred to herein as this “Agreement”.
Adar may change these Terms or its Acceptable Use Policy (“AUP”) on not less than thirty (30) days prior notice to Customer describing the change. If a change to the AUP or Terms materially and adversely affects Customer, Customer may terminate this Agreement by giving Adar written notice of termination no later than thirty (30) days following the date the change became effective. If Customer terminates this Agreement because Adar has modified Adar’s AUP or Terms in a way that materially adversely affects Customer, Adar may decide to waive that change as to Customer and keep Customer’s Agreement in place for the remainder of the term. If Adar does not waive that change as to Customer and the Agreement does in fact terminate, Adar will not charge Customer any early termination fee for a termination on those grounds.
- Customer Responsibilities
2.1 Subject to the terms and conditions of this Agreement, Adar grants to Customer a nonexclusive, nontransferable license to execute and use the Service for Customer’s business purposes of providing IT management to its third party customers. References to users in this Agreement will include Customer’s third party customers and their users.
2.2 Except as expressly set forth in Section 2.1, Customer may use the Service only for Customer’s internal business operations, and may not use the Service to provide service to third parties, including without limitation, through commercial timesharing, rental or sharing arrangements, “service bureau” based services, “application service provider” based services or software as a service (SaaS) based services, or any other use of the Service for the benefit of any third party.
2.3 Customer will be responsible for all activity occurring under its Service accounts. Customer agrees not to disclose user IDs to any third-party. Customer will promptly notify Adar of any unauthorized use of Customer’s account or of any other breach of security. Adar will not be liable for any loss that Customer may incur as a result of someone else using Customer’s passwords or account, either with or without Customer’s knowledge.
2.4 Customer will abide by all applicable local, state, national and foreign laws and regulations in connection with the use of the Service, including, without limitation, those related to data privacy and the transmission of technical or personal data.
2.5 Customer warrants that it will have the necessary rights and licenses to all software or services, including without limitation Microsoft Azure, accessed or used by Customer through the Service. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all data input by Customer into the Service.
2.6 Customer will designate and notify Adar of the person at Customer with responsibility for the administration of the Service, including such person’s name, position, phone, fax, email, and address.
2.7 Customer will be responsible for:
- 2.7.1 its users’ use of the Service and compliance with this Agreement;
- 2.7.2 all Internet, communication and other costs associated with use of the Service;
- 2.7.3 implementing reasonable security and environmental precautions in its facilities and its hardware and software infrastructure; and
- 2.7.4 reporting to Adar all errors in the Service promptly by web submission, e-mail or telephone.
2.8 Customer will not, and will not permit its users to:
- 2.8.1 permit access to the Service to any persons other than users who have been issued an individual identification or password code by Customer;
- 2.8.2 remove from the Service any copyright notices, disclaimers or other indicia of ownership or restrictions on use;
- 2.8.3 use the Service for any purpose that is unlawful or prohibited by the terms and conditions of these Terms or the AUP;
- 2.8.4 interfere with or disrupt the integrity or performance of the Service or third-party data or information contained therein;
- 2.8.5 use the Service in any manner that could damage, disable, overburden, or impair Adar’s hardware and software infrastructure (the “Environment”), or interfere with any other party’s use of the Service;
- 2.8.6 attempt to gain unauthorized access to the Environment, the Service, the accounts of other customers of Adar or computer systems or networks connected to Adar’s servers or to the Service;
- 2.8.7 attempt to obtain any information from the Service through any means that are not intentionally made available to Customer by Adar, or otherwise collect information about others;
- 2.8.8 use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy or other rights;
- 2.8.9 upload files that contain viruses, Trojan horses, worms, time bombs, corrupted files, or take other actions whose purpose or effect is to (a) disrupt, disable, harm, or otherwise impede in any manner or impair the operation of the Environment or the Service; (b) permit unauthorized access to the Environment or the Service; (c) cause the Environment or the Service to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with, or upload software or programs that may damage, the operation of another computer or property of another; or
- 2.8.10 access the Service for purposes of monitoring service availability, performance or functionality, or for any other benchmarking or competitive purposes.
2.9 Customer will cooperate with Adar’s reasonable investigation of Service outages, security problems, and any suspected breach of these Terms.
3.1 Payment. Billings will be made by Adar in arrears on a monthly basis on or about the first day of each month, and will simultaneously be charged to Customer’s credit card on file with Adar. All payments under this Agreement will be made in United States dollars. Customer will reimburse Adar for expenses and costs including, without limitation, reasonable attorneys’ fees, incurred by Adar to collect unpaid amounts hereunder.
3.2 Fees. Adar’s fees generally include sales, use, excise, occupation, value-added and similar taxes. Any additional taxes applicable to the sale or furnishing of the Service or to their use by Customer relating (excluding any tax on the net income of Adar) that are imposed after execution of this Agreement and are not already included with the fees will be separately itemized on Customer’s invoice, and Customer will pay, or reimburse Adar for, the gross amount of any such taxes.
- Term and Termination
4.1 Initial Term. This Agreement will commence on the Effective Date and continue until terminated in accordance with this Agreement (the “Initial Term”).
4.2 Termination. Customer or Adar may terminate this Agreement at any time with or without cause by prior written notice to the other party.
4.3 Post Termination Obligations. Adar will continue to provide the Service to the effective date of any such termination. Promptly after the date of any such termination Adar will render a final billing to Customer and simultaneously charge such amounts to Customer’s credit card on file with Adar.
4.4 Suspension. Adar may suspend Customer’s use of the Service without liability if: (a) Adar reasonably believes that the Customer’s use of the Service violates law or this Agreement, infringes the intellectual property rights of a third party or poses a threat to Adar’s systems, equipment, processes, business or intellectual property; (b) Customer does not cooperate with Adar’s reasonable investigation of any suspected violation of this Agreement; (c) there is an attack on Customer’s server(s), Customer’s server is accessed or manipulated by a third party without Customer’s consent, or there is another event for which Adar reasonably believe that the suspension of Service is necessary to protect the Adar network or Adar’s other Customers; (d) Customer fails to pay fees when due; or (e) if required by law. Adar will give Customer advance notice of suspension of at least twelve hours unless Adar determines in Adar’s reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Adar, its Customers or others.
- Confidential Information
5.1 Confidential Information. Each party understands and acknowledges that any data or information, oral or written, that relates to the other’s research, development or business activities (including without limitation any unannounced products and services, other clients, suppliers, and service providers, business processes and plans, finances, internal operations) which is disclosed or otherwise made available to the other party (collectively, “Confidential Information”) represent valuable confidential information entitled to protection as trade secrets. Each party will keep confidential, will not disclose, and will protect from unauthorized disclosure by its employees and agents, Confidential Information and all copies or physical embodiments thereof in any media in its possession, and will limit access to Confidential Information to those who require such access in connection with this Agreement. Each party will secure and protect the Confidential Information and any and all copies and other physical embodiments thereof in any media in its possession in a manner consistent with the steps taken to protect its own trade secrets and Confidential Information, but not less than a reasonable degree of care. Each party will take appropriate action with its employees who are permitted access to the Confidential Information to satisfy its obligations hereunder.
5.2. Exceptions. The confidentiality obligations set forth above will not apply to (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information received from a third party under no confidentiality obligation with respect to the Confidential Information or (iv) information required to be disclosed under administrative or court order or in arbitration or litigation arising out of this Agreement.
Indemnification, Disclaimers and Limitations of Warranties and Liability
6.1. Indemnification Obligations
- 6.1.1 Each party (the “Indemnifying Party”) will indemnify, defend and hold the other party and its stockholders, directors, employees and agents (in each case, an “Indemnified Party”) harmless from and against all damages and expenses of any kind (including reasonable attorneys’ fees) (collectively, “Damages”), incurred for third party claims arising out of or in connection with (i) infringement by the Indemnifying Party of any United States copyright, patent, trademark, trade secret or other intellectual property rights of any third party, (ii) any misrepresentation or breach of any representation, warranty or obligation by the Indemnifying Party under this Agreement, or (iii) any negligent or unlawful act by the Indemnifying Party in its performance of this Agreement, except in each case to the extent that such Damages arise out of any action by the Indemnified Party.
- 6.1.2 A party seeking indemnification will promptly notify the other party in writing of any claim, provided, that failure to give notice will only relieve the Indemnifying Party of liability if the Indemnifying Party has suffered actual material prejudice by such failure. The Indemnifying Party will (i) control the defense of any such claim; (ii) reimburse the Indemnified Party for any reasonable legal expenses directly incurred in such defense, as such expenses are incurred; and (iii) have the right to consent to judgment on, or otherwise settle, an indemnified claim with the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; provided, that the Indemnified Party may withhold its consent if the judgment or settlement imposes an unreimbursed or continuing obligation on the Indemnified Party or does not include an unconditional release of each Indemnified Party.
6.2 Warranties; Disclaimer of Warranties
- 6.2.1 Adar warrants that the Service will be provided in accordance with this Agreement and substantially in accordance with any Service descriptions or specifications. Adar does not warrant that the Service will meet Customer’s requirements or that the operation of the Service will be uninterrupted or error free or that all defects will be corrected. This warranty is void if failure of the Service has resulted from: (a) misuse, neglect, accident, abuse, modification, or misapplication of the Service; (b) Customer’s failure to use the Service in accordance with its documentation or this Agreement; or (c) the combination of the Service with any items not provided by Adar or specified in the Service’s documentation.
- 6.2.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (I) THE SERVICE IS PROVIDED AS IS AND AS AVAILABLE AND (II) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADAR DISCLAIMS ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE.
6.3 Exclusion of Liability
EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY INCLUDING NEGLIGENCE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.4 Limitation of Liability
EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.1, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (EXCLUDING ACTIONS TO COLLECT FEES) WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ADAR UNDER THIS AGREEMENT.
- Intellectual Property
Customer acknowledges that, as between Customer and Adar, Adar owns all right, title and interest in all copyright, patent, trademark, trade secret and other intellectual property rights with respect to the Service. Customer understands and agrees that its use of or access to any of the foregoing Adar property in connection with this Agreement will not create in it any right, title or interest, in or to such property, and that all such use or access and goodwill associated with any such use or access will inure to the benefit of and be on behalf of Adar.
8.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all the necessary power and authority to enter into and perform its obligations under this Agreement and (b) this Agreement has been duly authorized, executed and delivered by it and its execution and delivery of this Agreement, and the performance of its obligations and duties hereunder, will not (i) conflict with or result in any violation or breach of, or constitute a default (or give rise to any right of termination, cancellation or acceleration) under, any terms, conditions or provisions of agreement or other instrument or obligation to which it is a party or by which any of its properties or assets may be bound, except for such violations, breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on it and its ability to perform its obligations under this Agreement.
8.2 Independent Contractor. Adar and Customer are and will remain independent contractors. The Agreement does not constitute a partnership. Neither party is a franchisee, agent or legal representative of the other for any purpose, and neither party has the authority to act for, bind or make commitments on behalf of the other.
8.3 No Assignment. Neither party may sell, transfer, assign, or subcontract its rights or obligations under this Agreement without the express written consent of the other party. Any attempt to do so without such consent will be null and void. Notwithstanding the foregoing, Adar may, without Customer’s consent, assign this Agreement and its rights and obligations hereunder in connection with (i) a merger, combination, consolidation or similar business combination involving Adar, (ii) a sale of all or substantially all of Adar’s assets, or (iii) a sale of a majority of Adar’s outstanding voting securities.
8.4 Amendments in Writing. No amendment, modification, or waiver of any provision of this Agreement will be effective unless set forth in a writing that refers to this Agreement and is executed by authorized representatives of each party. No failure or delay by any party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.
8.5 Force Majeure. Adar will not be liable or deemed to be in breach of its obligations hereunder for any delay or failure in performance under this Agreement or other interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, act of war, accidents, electronic, computer or communications failures, natural disasters or catastrophes, strikes, or other work stoppages or any other cause beyond the reasonable control of the party affected thereby.
8.6 Notices. Any notice to be given under this Agreement will be in writing, will be deemed given upon receipt, and will be delivered in person, by e-mail or by overnight delivery service with proof of delivery, to the address set forth in the Service Order (or such other address previously designated by the receiving party by written notice) to the attention of the receiving party’s designated primary contact.
8.7 Governing Law; Dispute Forum. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois. The first party initiating any legal action under this Agreement will commence that action in the state or federal courts located in Chicago, Illinois, and each party agrees to the exclusive jurisdiction of such courts with respect to any dispute arising under this Agreement.
8.8 Entire Agreement; Severability. This Agreement, together with the schedules, amendments, and other attachments, contains a full and complete expression of the rights and obligations of the parties. If any provision of this Agreement conflicts with any schedule, amendment or attachment to this Agreement, this Agreement will control with respect to the subject matter of such schedule, amendment or attachment. This Agreement supersedes any and all other previous agreements, written or oral, made by the parties concerning its subject matter. If any provision of this Agreement is held by a court or arbitration panel of competent jurisdiction to be unlawful, the remaining provisions of this Agreement will remain in full force and effect to the extent that the parties’ intent can be lawfully enforced. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any Customer purchase order will be subject to the terms of this Agreement and that any acceptance of a purchase order by Adar will be for acknowledgment purposes only and none of the terms set forth in the purchase order will be binding upon Adar.
8.9 Headings. The headings to these terms and conditions have been included solely for references and are to have no force or effect in interpreting the provisions of the Agreement.
8.10 Survival. Sections 4.3, 5, 6, 7 and 8 will survive any termination of this Agreement.
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