Master Services Agreement

Terms and Conditions

The following terms and conditions govern Hyperion Managed Services, LLC’s (“us,”, “our,” “we, “ or “Hyperion’s”) relationship with you and limit our liability for any services or products that we provide to you. Please read these terms carefully and keep a copy for your records.
SCOPE; SERVICES
  1. Scope. This master services agreement (this “Agreement”) governs all services that we perform for you, as well as any licenses, services, or products that we sell or re-sell to you (collectively, the “Services”).
  2. Quotes. The Services are set forth in one or more statements of work (each a “SOW”) that describe, summarize, and/or define the scope of the Services. By accepting each SOW you agree to the terms of the SOW and the terms of this Agreement.
  3. Conflict. If there is a material difference between the language in a SOW and the language in this Agreement, then the language of the SOW will control as to that SOW only, except in situations involving warranties, limitations of liability, or termination of this Master Services Agreement, in which case, the terms of the Agreement will control the terms of the SOW. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.
GENERAL REQUIREMENTS
  1. Environment. For the purposes of this Agreement, “Environment” means, collectively, any computer network (cloud-based or otherwise), computer system, peripheral or device (virtual or physical) installed, maintained, monitored, or operated by us pursuant to a SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW you agree to refrain from modifying or moving the Environment or installing software in the Environment, unless we expressly authorize such activity. In situations where we are co-managing an Environment (such as situations in which we are supporting your internal IT department), we will not be responsible for changes to the Environment or issues that arises from those changes that are not expressly authorized by us.
  2. Requirements. Everything in the Environment must be genuine and licensed—including all hardware, software, etc. If we ask for proof of authenticity and/or licensing, you must provide us with such proof. If we require you to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), you agree to do so as an ongoing requirement of us providing the Services to you.
  3. Updates. Patches and updates to hardware and software (“Updates”) are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If Updates are provided to you under a SOW, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, and (iii) we reserve the right, but not the obligations, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.
  4. Third Party Support. If, in our discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs involved in that process. If the fees or costs are anticipated in advance and likely to exceed $300, we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require us to act otherwise.
  5. Advice; Instructions. From time to time, we may provide you with specific advice, suggestions and directions related to the Services (“Advice”). For example, our Advice may include increasing server or hard drive capacity, increasing CPU power, replacing obsolete equipment, or refraining from engaging in acts that disrupt the Environment or that make the Environment less secure. You are strongly advised to promptly follow our Advice which, depending on the situation, may require you to make additional purchases or investments in the Environment at your sole cost. We are not responsible for any problems or issues (such as downtime or security-related issues) caused by your failure to promptly follow our Advice. If, in our discretion, your failure to follow our Advice renders part or all of the Services economically or technically unreasonable to provide, then we may terminate the applicable SOW for cause by providing notice of termination to you. Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by your failure to follow our Advice, or your unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements, are out-of-scope and not covered under any SOW. Advice rendered to you is provided in accordance with relevant industry practices, based on your specific needs and Hyperion’s opinion and knowledge of the relevant facts and circumstances. By rendering Advice, or by suggesting a particular service or solution, Hyperion is not endorsing any particular manufacturer or service provider. Notwithstanding the foregoing, any advice and suggestions provided by us in our capacity as a virtual chief technology or information officer will be for your informational and/or educational purposes only. Hyperion will not hold an actual director or officer position in your company, and we will neither hold nor maintain any fiduciary relationship or position with you. Under no circumstances shall you list or place the Hyperion on your corporate records or accounts.
  6. Prioritization. All Services will be performed on a schedule, and in a prioritized manner, as we deem reasonable and necessary. Exact commencement / start dates may vary or deviate from the dates stated in a SOW depending on the Service being provided and the extent to which prerequisites (if any), such as transition or onboarding activities, must be completed.
  7. Authorized Contact(s). We will be entitled to rely on any directions or consent provided by your personnel or representatives who are authorized in a SOW to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable SOW or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the Order, and/or (ii) who is generally designated by you during the course of our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of a change of status of the Authorized Contact. If your change is provided to us in writing (physical document or by email), then the change will be implemented within two (2) business days after the first business day on which we receive your change notice. If your change notice is provided to us in person or by telephone (live calls only), the change will be implemented on the same business day in which the conversation takes place. Do not use a ticketing system or help desk request to notify us about the change of an Authorized Contact; similarly, do not leave a recorded message for us informing us of a change to your Authorized Contact. We reserve the right to delay the Services until we can confirm the Authorized Contact’s authority within your organization.
  8. Insurance. If you are supplied with Hyperion Equipment (defined below), you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. Hyperion must be listed as an additional insured / loss payee on any policy acquired and maintained by you under this Agreement, and the policy will not be canceled or modified during the term of the applicable SOW without prior notification to Hyperion. Upon our request, you agree to provide proof of insurance to us, including proof of payment of any applicable premiums or other amounts due under the insurance policy.
FEES; PAYMENT
  1. Fees. You agree to pay the fees, costs, and expenses described in each SOW. You are responsible for sales tax and any other taxes or governmental fees associated with the Services. Fees set forth in approved SOWs will be charged automatically to the payment method on file within one business day of approval of the applicable SOW. In addition, we reserve the right to increase our monthly recurring and data recovery fees; provided, however, we will not do so more than once per calendar year. If an increase is more than five percent (5%) of the fees charged for the Services in the prior calendar year, then you will be provided with a thirty (30) day opportunity to terminate the applicable SOW by providing us with written notice of termination. Your continued acceptance or use of the Services after this thirty (30) day period will indicate your acceptance of the increased fees. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption. If the tax exemption is no longer valid or not valid for the Services, you will remain liable for all tax liability, including any fines, penalties and interest assessed against Hyperion as a result of its reliance upon your representation of being tax exempt for the subject Services. You are also responsible for all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes).
  2. Schedule. Except for Third-Party Services, which may be billed in arrears, in Hyperion’s sole and absolute discretion, all fees will be due and payable in advance of the provision of the Services. If applicable, recurring payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided, and, if applicable, your designated credit card will be charged on the first business day of the month in which the Services are to be provided. Thereafter, if the amount Covered Hardware or Supported Services changes, or if the number of authorized users accessing the Environment changes, then you agree that the fees will be automatically and immediately modified to accommodate those changes. Under no circumstances will the number of authorized users, the number of licenses, or the quantity of Covered Hardware or Supported Services drop below the amounts initially indicated in the applicable SOW without our consent (the “Minimum Fees”).
  3. Nonpayment. Fees that remain unpaid for more than thirty (30) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely received by us, and monthly or recurring charges shall continue to accrue during any period of suspension. Notice of disputes related to fees must be received by us within thirty (30) days of the date of the disputed invoice; otherwise, you waive your right to withhold any fees related to the dispute (“Timely Disputed Fees”). Timely Disputed Fees will not be deemed a basis to suspend services so long as the parties are actively engaged in resolving the dispute. A re-connect fee may be charged to you if we suspend the Services due to your nonpayment. Time is of the essence in the performance of all payment obligations by you.
  4. ACH. Generally, all prices quoted in a SOW anticipate automatic monthly recurring payment by you. Payments by any other methods will result in increased fees or costs.
  5. True-Ups. We may perform true-ups at any time. In our discretion, true-up meetings may also be held to survey and account for changes in the Environment, including the number of users, number of locations, usage, equipment age and operability, internet bandwidth and any other factors that the fees were based upon in the applicable Statement of Work. Based on the true-up, the fees set forth in the applicable Statement of Work will be adjusted in accordance with the true-up and reflected in subsequent invoices, provided that such recurring charges not decrease during the term of this Statement of Work or result in the fees being below the Minimum Fees.
ACCESS
  1. You hereby grant to Hyperion and its designated third-party vendors the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us or our vendors, as applicable, to provide the Services. Depending on the Service, we may be required to install one or more software agents into the Environment through which such access may be enabled. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for Hyperion or its vendors to provide Services to the Environment and, if applicable, at your designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by you at all times. Hyperion shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.
LIMITED WARRANTIES; DISCLAIMERS; LIMITATIONS OF LIABILITY
  1. Hardware / Software Purchased Through Hyperion. All hardware, software, peripherals or accessories purchased through Hyperion (“Third Party Products”) are generally nonrefundable once the product is obtained from Hyperion’s third party provider or reseller. If you require a refund, then the third party provider’s or reseller’s return policies shall apply. We do not guarantee that purchased Third Party Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided. You will be responsible for the payment of all re-stocking or return-related fees charged by the third party provider or reseller. We 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 we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. All Third Party Products are provided “As Is” and without any warranty whatsoever as between Hyperion and you (including but not limited to implied warranties).
  2. Transitioning to the Services. Hyperion is not responsible for any delays or problems that occur in the transitioning to, implementation of, or the integration with the Services due to any issues with the current configuration of or existing problems with your information infrastructure, or any delays or problems that are associated with transitioning the Services from a third-party service provider, or implementing or integrating any of the Services with a third-party service provider’s services or products where such delay(s) or problem(s) are caused by or contributed to by a third-party service provider’s incompatible technology, conduct or failure to timely cooperate with Hyperion in the transitioning, implementing or integrating of any of the Services.
  3. DISCLAIMERS OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HYPERION DOES NOT MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES (INCLUDING ANY PROJECT DELIVERABLE), INFRINGEMENT, UPDATES, DOCUMENTATION, SUPPORT, HARDWARE OR THIRD PARTY SOFTWARE, SOFTWARE ERRORS, INTERNET SPEEDS, TELECOMMUNICATION OR DIGITAL TRANSMISSION INTERRUPTIONS OR FAILURES, INTERRUPTIONS OR FAILURES OF THIRD-PARTY SERVICE PROVIDERS OR SUBCONTRACTORS, SOFTWARE ERRORS, AND/OR ANY OTHER SERVICES PROVIDED OR OFFERED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. HYPERION FURTHER DOES NOT WARRANT THAT THE SERVICES WILL MEET ANY CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY SERVICES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
  4. Liability Limitations. This paragraph limits the liabilities arising under this Agreement or any SOW and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that Hyperion would not enter into any SOW or this Agreement unless Hyperion could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, including, but not limited to, lost revenue, loss of profits (except for fees due and owing to Hyperion), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation, and any unpaid fees you owe. Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to Hyperion for the specific Service upon which the applicable claim(s) is/are based during the three (3) month period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
INDEMNIFICATION
  1. Indemnification by Client.
    Client shall indemnify, defend and hold Hyperion and each of its directors, officers, employees, and subcontractors (“Hyperion Indemnified Parties”) harmless from and against any claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from: (a) a claim, suit or proceeding brought against Hyperion by a third-party asserting that the Processing of or access to the Client Data by Hyperion or its subcontractors infringes a United States patent, copyright or trademark; (b) any breach based on a claim arising out of or related to the wrongful access or exfiltration of data stored on or through a Project Deliverable; (c) any claim by a Third Party Service Provider related to Client’s canceling or transitioning any services to Hyperion or any of the other Hyperion Indemnified Parties; (d) any claim related to the release of Client Credentials pursuant to Sections 5.b. or 7.g.; or (e) any claim by an Outside Service Provider or Third-Party Service Provider related to Hyperion or any of the other Hyperion Indemnified Parties providing any of the Services in conjunction with any service(s) provided by an Outside Service Provider or Third-Party Service Provider (collectively, a “Claim”). Client’s obligations with respect to this Section 6 are conditioned upon: (x) Hyperion providing Client prompt written notice of the Claim or threat thereof, but only to the extent that any delay in notification adversely affected Client’s ability to defend the Claim; (y) Hyperion giving Client full and exclusive authority for the conduct of the defense and settlement of the Claim and any subsequent appeal (provided that Client shall not settle or compromise any Claim that does not provide for the full and unconditional release of Hyperion Indemnified Parties); and (z) Hyperion giving Client all information and assistance reasonably requested by Client in connection with the conduct of the defense and settlement of the Claim and any subsequent appeal.
  2. Indemnification by Hyperion for Infringement.
    Hyperion shall indemnify, defend and hold Client and each of its officers, directors, employees, subcontractors, and Users (“Client Indemnified Parties”) harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Client by a third party asserting that the use of or access of software on Hyperion’s network used for managing the Environments of all of Hyperion’s clients or software that Hyperion fraudulently acquires on Client’s behalf (“Subject Software”) infringes a patent, copyright or trademark (“Claim”). Notwithstanding the foregoing, as it relates to an infringement claim, Hyperion shall not be obligated to indemnify, defend or hold harmless Client Indemnified Parties to the extent any claim of infringement arises from: (a) the combination, operation, or use of the Services with equipment, devices or software supplied by Client; (b) Client Indemnified Parties’ use of the Services in a manner that violates the terms of this Agreement; (c) alterations or modifications to the Services which were not performed by Hyperion or authorized by Hyperion; or (d) Hyperion’s incorporation into the Services customized alterations, modifications, or changes based solely on, and in compliance with, Client’s written designs, specifications, or instructions. Hyperion’s obligations with respect to this Section 7.B. are conditioned upon: (x) Client providing Hyperion prompt written notice of the Claim or the threat thereof, but only to the extent that any delay in notification adversely affected Hyperion’s ability to defend such claim; (y) Client giving Hyperion full and exclusive authority for the conduct of the defense and settlement of the Claim and any subsequent appeal (provided that Hyperion shall not settle or compromise any Claim that does not provide for the full and unconditional release of Client Indemnified Parties without the prior written consent of Client); and (z) Client giving Hyperion all information and assistance reasonably requested by Hyperion in connection with the conduct of the defense and settlement of the claim and any subsequent appeal.
  3. Avoidance of Infringment.
    Without in any way limiting Hyperion’s indemnification obligations under the Agreement, if a Claim arises, or in Hyperion’s judgment is likely to occur, Hyperion shall, at its option and expense: (a) procure for Client the right to continue using the Subject Software; or (b) replace or modify the Subject Software so that it becomes non-infringing without substantially compromising its principal functions; or (c) replace the Subject Software with an equally suitable, compatible and functionally equivalent non-infringing Software at no additional charge to Client, or (d) if none of the foregoing alternatives is reasonably available to Hyperion, then it may terminate this Agreement or the applicable SOW upon written notice to Client and refund to Client fees that were pre-paid for the then current term, pro-rated for the remainder of said term. The foregoing states the entire liability of Hyperion, and Client’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Subject Software or any part thereof or its use or operation.
TERM; TERMINATION
  1. Term. This Agreement begins on the earliest date on which you accept an Order and continues until terminated as described in this Agreement. Each SOW will have its own term and will be terminated only as provided herein, unless otherwise expressly stated in the applicable SOW. The termination of one SOW shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other SOW between the parties.
  2. Termination Without Cause. Unless otherwise agreed by the parties in writing or otherwise expressly permitted under this Agreement, no party may terminate this Agreement without cause if, on the date of termination, a SOW is in progress. In addition, no party may terminate a SOW without cause prior to the SOW’s natural expiration date. Notwithstanding the foregoing, if Hyperion decides to cease providing a service to all of its customers generally, then Hyperion may terminate an applicable SOW (or the applicable portion of the SOW) without cause by providing no less than one hundred and twenty (120) days prior written notice to you. If you terminate a SOW without cause and without Hyperion’s consent, then you will be responsible for paying the termination fee described in the “Termination for Cause” section, below. If no SOW is in progress, then either party may terminate this Agreement without cause by providing the other party with five (5) days prior written notice.
  3. Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If Hyperion terminates this Agreement or any SOW For Cause, or if you terminate any SOW without cause prior to such SOW’s expiration date, then Hyperion shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to Hyperion had this Agreement or SOW (as applicable) remained in effect. If you terminate this Agreement or a SOW For Cause, then you will be responsible for paying only for those Services that were delivered properly and accepted by you up to the effective date of termination.
  4. Client Activity As A Basis for Termination. In the event that you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then in addition to Hyperion’s other rights under this Agreement, Hyperion will have the right upon providing you with ten (10) days prior written notice, to terminate this Agreement or the applicable SOW For Cause or, at our discretion and if applicable, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.
  5. Consent. You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time.
  6. Equipment / Software Removal. Upon termination of this Agreement or applicable SOW for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which Hyperion-owned equipment or software (collectively, “Hyperion Equipment”) is located to enable us to remove all Hyperion Equipment from the premises. If you fail or refuse to grant Hyperion access as described herein, or if any of the Hyperion Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Hyperion-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items. Certain services may require the installation of software agents in the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.
  7. Transition; Deletion of Data. In the event that you request Hyperion’s assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Hyperion providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. If as part of any transition assistance services from Hyperion to your new service provider or Client otherwise receive access to the credentials for accessing the administrative privileges, including, usernames, passwords, log files, and administrative server information, related to the Services or control over domain names and phone numbers (collectively, “Admin Credentials”), upon delivery of the Admin Credentials to Client or your new service provider or upon your or your new service provider accessing the Admin Credentials, whichever occurs first, Client waives all claims against Hyperion and Hyperion will have no liability related to the delivery of the Admin Credentials, including without limitation, any security incident or system issue. For the purposes of clarity, it is understood and agreed that the retrieval and provision of the Admin Credentials or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly stated in a SOW, we will have no obligation to store or maintain any Client’s data in our possession or control beyond fifteen (15) calendar days following the termination of this Agreement. We will be held harmless for, and reimbursed and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, our deletion of your data beyond the time frames described in this section.
RESPONSE; REPORTING
  1. Response. We respond to any notification received by us of any error, outage, alarm or alert pertaining to the Environment, in accordance with priority table(s) in the applicable SOW. In no event will we be responsible for delays in our provision of Services during (i) those periods of time covered under the Transition Exception (defined below), or (ii) periods of delay caused by Client-Side Downtime (defined below), Vendor-Side Downtime (defined below) or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a force majeure event.
    1. Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by us but which will not occur between the hours of 9:00 AM and 5:00 PM Eastern Time, Monday through Friday without your authorization or unless exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to the Environment. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
    2. Client-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 your actions or omissions (“Client-Side Downtime”).
    3. 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.
  2. Transition Exception. You acknowledge and agree that for the first forty-five (45) days following the commencement date of a SOW, as well as any period of time during which we are performing off-boarding-related services (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), the response time commitments described in this Agreement or any applicable SOW will not apply to us, it being understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).
  3. Fair Usage Policy. Our Fair Usage Policy (“FUP”) applies to all services in this SOW that are described or designated as “unlimited.” An “unlimited” service designation means that, subject to the terms of this FUP, you may use the service as reasonably necessary for you to enjoy the use and benefit of the service without incurring additional time-based or usage-based costs. However, unless expressly stated otherwise in this SOW, all unlimited services are provided during our normal business hours only and are subject to our technicians’ availabilities, which cannot always be guaranteed. In addition, we reserve the right to assign our technicians as we deem necessary to handle issues that are more urgent, critical, or pressing than the request(s) or issue(s) reported by you. Consistent with this FUP, you agree to refrain from (i) creating urgent support tickets for non-urgent or non-critical issues, (ii) requesting excessive support services that are inconsistent with normal usage patterns in the industry (e.g., requesting support in lieu of training), (iii) requesting support or services that are intended to interfere, or may likely interfere, with our ability to provide our services to our other customers.
MODIFICATION OF ENVIRONMENT; REMOVAL OF SOFTWARE AGENTS
  1. Changes made to the Environment without our prior written authorization may have a substantial, negative impact on the provision and effectiveness of the Services, and may impact the fees charged under this SOW. Excluding hardware and software already purchased or licensed by Client prior to the date of Onboarding Services, all hardware and software must be purchased and licenses acquired through Hyperion, unless Hyperion agrees to Client’s direct purchase or licensing of a particular hardware or software in writing. You further agree to refrain from moving, modifying, or otherwise altering any portion of the Environment without our prior knowledge or consent. For example, you agree to refrain from adding or removing hardware from the Environment, installing applications on the Environment, or modifying the configuration or log files of the Environment without our prior knowledge and consent.
  2. Unless we expressly direct you to do so, you will not remove or disable, or attempt to remove or disable, any software agents that we installed in the Environment. Doing so without our guidance may make it difficult or impracticable to remove the software agents, which could result in network vulnerabilities and/or the continuation of license fees for the software agents for which you will be responsible, and/or the requirement that we remediate the situation at our then-current hourly rates, for which you will also be responsible. Depending on the particular software agent and the costs of removal, we may elect to keep the software agent in the Environment but in a dormant and/or unused state.
CONFIDENTIALITY
  1. Defined. For the purposes of this Agreement, your Confidential Information means any and all non-public information provided to us by you, including but not limited to your customer data, customer lists, internal documents, and related information. Our Confidential Information includes the terms of this Agreement. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Receiving Party, (ii) was developed independently by the Receiving Party, or (iii) is or was lawfully and independently provided to the Receiving Party prior to disclosure of the Confidential Information by the Disclosing Party, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
  2. Use. Each party, in its capacity as the receiver of Confidential Information, (the “Receiving Party”) will keep the other party’s (the “Disclosing Party”) Confidential Information confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill the Receiving Party’s obligations under this Agreement.
  3. Due Care. The Receiving Party will exercise the same degree of care with respect to the Confidential Information it receives that it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
  4. Compelled Disclosure. If the Receiving Party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that the Receiving Party is not prohibited by law from doing so, it will immediately notify the Disclosing Party in writing of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section. The Receiving Party will use its best efforts, at the Disclosing Party’s expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Receiving Party may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that it has been advised, by written opinion from its counsel, that it is legally compelled to disclose.
  5. Business Associate. If we enter into a business associate agreement (“BAA”) with you for the protection of personal health information, then the terms of the BAA will be read in conjunction with the terms of the confidentiality provisions of this Agreement. The terms that protect confidentiality most stringently shall govern, and conflicting privacy- or confidentiality-related terms shall be governed by the BAA.
UNSUPPORTED CONFIGURATION ELEMENTS AND SERVICES
  1. If you request a configuration element (hardware or software) or hosting service in a manner that is not customary at Hyperion , or that is in “end of life” or “end of support” status, we may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term in the service description (each an “Unsupported Service”). We make no representation or warranty whatsoever regarding any Unsupported Service, and you agree that we will not be liable for any loss or damage arising from the provision of an Unsupported Service. Deployment and service level guarantees shall not apply to any Unsupported Service. Our support of Unsupported Service may incur increased recurring support costs at our discretion.
ASSUMPTIONS/MINIMUM REQUIREMENTS EXCLUSIONS
  1. The scheduling, fees and provision of the Services are based upon the following assumptions and minimum requirements:
    1. All end user systems must have solid state drives, including existing systems.
    2. Server hardware must be under current warranty coverage.
    3. All equipment with Microsoft Windows® operating systems must be running then-currently supported versions of such software and have all of the latest Microsoft service packs and critical updates installed.
    4. All software must be genuine, licensed and vendor supported.
    5. Server file systems and email systems (if applicable) must be protected by licensed and up-to-date virus protection software.
    6. The Environment must have a currently licensed, vendor-supported server-based backup solution that can be monitored.
    7. All wireless data traffic in the environment must be securely encrypted.
    8. There must be an outside static IP address assigned to a network device, allowing VPN access.
    9. All servers must be connected to working UPS devices.
    10. Recovery coverage assumes data integrity of the backups, or the data stored on the backup devices. We do not guarantee the integrity of the backups, or the data stored on the backup devices. Server restoration will be to the point of the last successful backup.
    11. Client must provide all software installation media and key codes in the event of a failure.
    12. Any costs required to bring the Environment up to these minimum standards are not included in this SOW.
  1. Client must provide us with exclusive administrative privileges to the Environment.
  2. Client must not affix or install any accessory, addition, upgrade, equipment or device on to the firewall, server, or NAS appliances (other than electronic data) unless expressly approved in writing by us.
  3. Exclusions. Services that are not expressly described in an unexpired SOW will be out of scope and will not be provided to Client absent Client and Hyperion executing a SOW. Without limiting the foregoing, the following services are expressly excluded under an SOW, and if required to be performed, must be agreed upon by Hyperion in writing:
    1. Customization of third-party applications, or programming of any kind.
    2. Support for operating systems, applications, or hardware no longer supported by the manufacturer.
    3. Data/voice wiring or cabling services of any kind.
    4. Battery backup replacement.
    5. Equipment relocation.
    6. The cost to bring the Environment up to the Minimum Requirements (unless otherwise noted in “Scope of Services” above).
    7. The cost of repairs to hardware or any supported equipment or software, or the costs to acquire parts or equipment, or shipping charges of any kind.
OWNERSHIP
  1. Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the purposes of clarity, you understand and agree that we and our licensors own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. If we provide licenses to you for third party software under a SOW, then you understand and agree that such software is licensed, and not sold, to you. You are allowed to use such third-party software subject to the terms and conditions (i) of this Agreement, (ii) of the applicable SOW, and (iii) any applicable EULA; no other uses of such third party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.
ADDITIONAL TERMS; THIRD PARTY SERVICES
  1. EULAs. 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 us 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 this Agreement. You agree to be bound by the terms of such EULAs, as such terms may be amended from time to time by the third party provider, and will look only to the applicable third party provider for the enforcement of the terms of such EULAs. If, while providing the Services, we are required to comply with a third-party EULA and the third party EULA is modified or amended, we reserve the right to modify or amend any applicable SOW with you to ensure our continued compliance with the terms of the third party EULA.
  2. Third-Party Services Provided Through Hyperion. Portions of the Services may be acquired from, or rely upon the services of, third party manufacturers or providers, such as data hosting services, help desk services, domain registration services, and data backup/recovery services (“Third-Party Service”). Not all Third-Party Services may be expressly identified as such in a SOW, and at all times we reserve the right to utilize the services of any third-party provider or to change third-party providers in our sole discretion as long as the change does not materially diminish the Services to be provided to you under a SOW. We will not be responsible, and will be held harmless by you, for the failure of any third-party provider or manufacturer to provide Third-Party Services to Hyperion or to you. Some Third-Party Services invoice for services in arrears; therefore, upon termination of this Agreement or the applicable SOW, fees may remain owing for past services through the date of termination that have not yet been billed.
  3. Third-Party Services Provided Through Client. Client will not contract directly for any Third-Party Services with the third-party service provider without our written consent.
  4. Data Loss. Under no circumstances will we be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our failure to backup or secure data from portions of the Environment that were not expressly designated in the applicable SOW as requiring backup or recovery services. Unless expressly stated in a SOW, we do not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.
  5. BYOD. You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in a SOW, Devices will not receive or benefit from the Services while the devices are detached from, or unconnected to, the Environment. Client is strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.
  6. Equipment. Unless otherwise noted in a SOW or Order, all Hyperion Equipment is licensed to you, and is neither owned by you nor leased to you. Upon the expiration of an applicable SOW, your license to use the Hyperion Equipment shall immediately terminate, and thereafter all Hyperion Equipment must be returned to us immediately at your expense. All configurations on the Hyperion Equipment are our proprietary information and will not be circumvented, modified, or removed by you without our prior written consent.
SERVICES AND PRODUCTS CATALOG
    1. The following is a list of some of the services and products we offer. The services and products will be provided only pursuant to a SOW. If a SOW does not include a service or product listed below, the service or product will not be provided to you.
      1. One-time Services
        1. Onboarding Services. The following onboarding services will be performed under this SOW:
          1. Uninstall any monitoring tools or other software installed by previous IT consultants.
          2. Compile a full inventory of all protected servers, workstations, and laptops.
          3. Uninstall any previous virus protection and install our managed antivirus application.
          4. Install remote support access application on each managed device to enable remote support.
          5. Configure patch management application and check for missing security updates.
          6. Uninstall unsafe applications or applications that are no longer necessary.
          7. Optimize device performance including disk cleanup, antivirus, and spyware scans.
          8. Review firewall configuration and other network infrastructure devices.
          9. Review status of battery backup protection on all devices.
          10. Stabilize network and assure that all devices can securely access the file server.
          11. Review and document current server configuration and status.
          12. Determine existing backup strategy and status; prepare backup options for consideration.
          13. Review password policies and update user and device passwords.
          14. As applicable, make recommendations for changes that should be considered to the managed environment.
          15. If deficiencies are discovered during the onboarding process, we will bring those issues to your attention and discuss the impact of the deficiencies on our provision of our monthly managed services. Please note, unless otherwise expressly stated in this SOW, onboarding-related services do not include the remediation of any issues, errors, or deficiencies (“Issues”), and we cannot guarantee that all Issues will be detected during the onboarding process.
        2. Data Recovery Services
          1. You must contact us if data recovery services are needed. Upon your payment of the applicable fees (described below), we will make your backed up data available to you in a hosted, virtual environment. Your access to the backed up data will continue for a period of two (2) weeks; extended access time is available as described in the Fees section, of the Quote and SOW.
        3. Remediation
          1. Unless otherwise provided in an SOW, remediation services will be provided in accordance with the recommended practices of the managed services industry. Client understands and agrees that remediation services are not intended to be, and will not be, a warranty or guarantee of the functionality of the Environment, or a service plan for the repair of any particular piece of managed hardware or software.
        4. Breach/Cyber Security Incident Recovery
          1. Unless otherwise expressly stated in an SOW, the scope of breach/cyber security incident recovery services do not include the remediation and/or recovery from a Security Incident (defined below). Such services, if requested by you, will be provided on a time and materials basis under our then-current hourly labor rates. Given the varied number of possible Security Incidents, we cannot and do not warrant or guarantee (i) the amount of time required to remediate the effects of a Security Incident (or that recovery will be possible under all circumstances), or (ii) that all data impacted by the incident will be recoverable. For the purposes of this paragraph, a Security Incident means any unauthorized or impermissible access to or use of the Environment, or any unauthorized or impermissible disclosure of Client’s confidential information (such as user names, passwords, etc.), that (i) compromises the security or privacy of the information or applications in, or the structure or integrity of, the Environment, or (ii) prevents normal access to the Environment, or impedes or disrupts the normal functions of the Environment.
        5. Equipment and Software Procurement
          1. Equipment and software procured by Hyperion on Client’s behalf (“Procured Equipment”) may be covered by one or more manufacturer warranties, which will be passed through to Client to the greatest extent possible. By procuring equipment or software for Client, Hyperion does not make any warranties or representations regarding the quality, integrity, or usefulness of the Procured Equipment. Certain equipment or software, once purchased, may not be returnable or, in certain cases, may be subject to third party return policies and/or re-stocking fees, all of which shall be Client’s responsibility in the event that a return of the Procured Equipment is requested. Hyperion is not a warranty service or repair center. Hyperion will facilitate the return or warranty repair of Procured Equipment; however, Client understands and agrees that the return or warranty repair of Procured Equipment is governed by the terms of the warranties (if any) governing the applicable Procured Equipment, for which Hyperion will be held harmless.
          2. Exposure to environmental factors, such as water, heat, cold, or varying lighting conditions, may cause installed equipment to malfunction. Unless expressly stated in this SOW, we do not warrant or guarantee that installed equipment will operate error-free or in an uninterrupted manner, or that any video or audio equipment will clearly capture and/or record the details of events occurring at or near such equipment under all circumstances.
        6. Penetration testing; Vulnerability Assessment
          1. You understand and agree that security devices, alarms, or other security measures, both physical and virtual, may be tripped or activated during the penetration testing process, despite our efforts to avoid such occurrences. You will be solely responsible for notifying any monitoring company and all law enforcement authorities of the potential for “false alarms” due to the provision of the penetration testing services, and you agree to take all steps necessary to ensure that false alarms are not reported or treated as “real alarms” or credible threats against any person, place or property. Some alarms and advanced security measures, when activated, may cause the partial or complete shutdown of the Environment, causing substantial downtime and/or delay to your business activities. We will not be responsible for and will be held harmless and indemnified by you against, any claims, costs, fees or expenses arising or resulting from (i) any response to the penetration testing services by any monitoring company or law enforcement authorities, or (ii) the partial or complete shutdown of the Environment by any alarm or security monitoring device.
        7. Sample Policies and Procedures
          1. From time to time, we may provide you with sample (i.e., template) policies and procedures for use in connection with Client’s business (“Sample Policies”). The Sample Policies are for your informational use only, and do not constitute or comprise legal or professional advice, and the policies are not intended to be a substitute for the advice of competent counsel. You should seek the advice of competent legal counsel prior to using or distributing the Sample Policies, in part or in whole, in any transaction. We do not warrant or guarantee that the Sample Policies are complete, accurate, or suitable for your (or your customers’) specific needs, or that you will reduce or avoid liability by utilizing the Sample Policies in your (or your customers’) business operations.
      2. Ongoing/Recurring Services
Upon the completion of onboarding services (if any), the services listed in the Quote and described below will be provided to you on an ongoing basis during the term of this SOW.
        1. Managed Services
The quote and sow will set forth and identify the managed services to be provided to you by us. third-party scanning. unless we authorize such activity in writing, you will not conduct any test, norrequest or allow any third party to conduct any test (diagnostic or otherwise), of the security system, protocols,processes, or solutions that we implement in the managed environment (testing activity). Any services required to diagnose or remediate errors, issues, or problems arising from unauthorized testing activity is not covered under a sow, and if you request us (and we elect) to perform those services, those services will be billed to you at our then-current hourly rates.
        1. Managed Equipment/Hardware/Software
Managed equipment, hardware and software services will be applied to the equipment listed in the Quote (“Covered Hardware”). The Services will apply to the software listed in the Quote (“Supported Software”) provided, however, that all Supported Software must, at all times, be properly licensed, and under a maintenance and support agreement from the Supported Software’s manufacturer. In this SOW, Covered Hardware and Supported Software will be referred to as the “Environment.”
        1. Data Backup
Our backup and disaster recovery (BDR) services include:
          1. Managed backup of servers and workstations listed in the Quote
          2. 24/7 monitoring of backup system, including offsite backup, offsite replication and an onsite backup appliance (“Backup Appliance”)
          3. Troubleshooting and remediation of failed backup disks
          4. Preventive maintenance and management of imaging software
          5. Firmware and software updates of backup appliance
          6. Problem analysis by the network operations team
          7. Monitoring of backup successes and failures
          8. Daily recovery verification
Backed-Up Servers/Workstations: See Quote for servers/workstations that will be backed up.
          1. Note: Data on equipment that is not specifically listed in the Quote will not be backed up.
          2. Storage Limitation: Client will be allocated the of storage space for backup and recovery purposes as listed in the Quote. Any space required or requested by Client beyond this amount will be provided to Client $0.20 per Gigabyte.
          3. Backup Frequency: On-site backups will occur in real time; offsite backups will occur no less than every three (3) hours, Monday through Friday.
          4. Backup Data Security: All backed up data is encrypted in transit and at rest in 256-bit AES encryption. All facilities housing backed up data implement physical security controls and logs, including security cameras, and have multiple internet connections with failover capabilities.
          5. Backup Retention: Hyperion only guarantees retrieval of the most recent recovery point sent to the backup appliance in a local recovery situation. Hyperion only guarantees retrieval of archived data sent to the off-site data center in the prior calendar day.
All data transmitted over the Internet may be subject to malware and computer contaminants such as viruses, worms and trojan horses, as well as attempts by unauthorized users, such as hackers, to access or damage Client’s data. Neither Hyperion nor its designated affiliates will be responsible for the outcome or results of such activities. BDR services require a reliable, always-connected internet solution. Data backup and recovery time will depend on the speed and reliability of your internet connection. Internet and telecommunications outages will prevent the BDR services from operating correctly. In addition, all computer hardware is prone to failure due to equipment malfunction, telecommunication-related issues, etc., for which we will be held harmless. Due to technology limitations, all computer hardware, including communications equipment, network servers and related equipment, has an error transaction rate that can be minimized, but not eliminated. Hyperion cannot and does not warrant that data corruption or loss will be avoided, and Client agrees that Hyperion shall be held harmless if such data corruption or loss occurs. Client is strongly advised to keep a local backup of all of stored data to mitigate against the unintentional loss of data. LICENSE GRANT. All Backup Appliances are embedded with proprietary software (“BDR Software”). Hyperion hereby grants to Client a non-exclusive, royalty free, non-transferable license, during the term of this SOW, to use the BDR Software in conjunction with the BDR-related services provided by Hyperion. Client shall not reverse engineer, de-compile or otherwise use the BDR Software in any manner not specifically authorized by Hyperion.
            1. Monitoring Services; Alert Services
Unless otherwise indicated in an SOW, all monitoring and alert-type services are limited to detection and notification functionalities only. These functionalities are guided by Client-designated policies, which may be modified by Client as necessary or desired from time to time. Initially, the policies will be set to a baseline standard as determined by Hyperion; however, Client is advised to establish and/or modify the policies that correspond to Client’s specific monitoring and notification needs.
            1. Dark Web Monitoring
Our dark web monitoring services utilize the resources of third party solution providers. Dark web monitoring can be a highly effective tool to reduce the risk of certain types of cybercrime; however, we do not guarantee that the dark web monitoring service will detect all actual or potential uses of your designated credentials or information.
            1. Anti-Virus; Anti-Malware
Our anti-virus/anti-malware solution will generally protect the Environment from becoming infected with new viruses and malware (“Viruses”); however, Viruses that exist in the Environment at the time that the security solution is implemented may not be capable of being removed without additional services, for which a charge may be incurred. We do not warrant or guarantee that all Viruses and malware will be capable of being detected, avoided, or removed, or that any data erased, corrupted, or encrypted by malware will be recoverable. You agree that Hyperion or its designated third-party affiliate may transfer information about the results of processed files, information used for URL reputation determination, security risk tracking, and statistics for protection against spam and malware. Any information obtained in this manner does not and will not contain any personal or confidential information.
            1. Leased/Loaned Hardware
If hardware is leased or loaned to Client, within ten (10) days after being directed to do so, Client will remove, package and ship, at Client’s expense and in a commercially reasonable manner, all hardware, equipment, and accessories provided to Client by Hyperion that were used in the provision of the Services. If you fail to timely return all equipment to us, or if the equipment is returned to us damaged (normal wear and tear excepted), then we will have the right to charge you, and you hereby agree to pay, the replacement value of all such unreturned or damaged equipment.
          1. MISCELLANEOUS
          1. Compliance. Unless otherwise expressly stated in a SOW, the Services are not intended, and will not be used, to bring Client into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Client’s business or operations. Depending on the Services provided, the Services may aid Client’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.
          2. Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.
          3. Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a SOW, the recovery of Impacted Data is not included in the scope of a SOW. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are not responsible for any damages from or related to such incidents and you will hold us harmless from any costs, expenses, or damages arising from or related to such incidents.
          4. Non-Solicitation. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of the other party’s employees with whom the Restricted Party worked with to discontinue or reduce the scope of their business relationship with the other party, or recruit, solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
          5. Collections. If we are required to send your account to Collections or to start any Collections-related action to recover fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.
          6. Assignment. Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder.
          7. Amendment. Unless otherwise expressly permitted under this Agreement, no amendment or modification of this Agreement or any SOW will be valid or binding upon the parties unless such amendment or modification is originated in writing by Hyperion, specifically refers to this Agreement or the SOW being amended, and is accepted in writing (email or electronic signature is acceptable) by you.
          8. Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
          9. Severability. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
          10. Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless such terms or conditions are incorporated into a duly executed SOW, or unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
          11. No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
          12. Merger. This Agreement, together with any and all Quotes and SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements if they are not explicitly set forth in this Agreement or any Quote or SOW. Any document that is not expressly and specifically incorporated into this Agreement or SOW will act only to provide illustrations or descriptions of Services to be provided and will not modify this Agreement or provide binding contractual language between the parties. The foregoing sentence shall not apply to any business associate agreement required under HIPAA, which the parties may (if required) enter into after the Effective Date of this Agreement.
          13. Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW 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, 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.
          14. Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
          15. Insurance. Hyperion and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability. We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.
          16. Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of Michigan. You hereby irrevocably consent to the exclusive jurisdiction and venue of Oakland County, Michigan, for any and all claims and causes of action arising from or related to this Agreement.
          17. No Third-Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
          18. Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, supplement, or Hyperion in any manner the terms of this Agreement.
          19. Business Day. If a time period set forth in this Agreement expires on a day other than a business day in Oakland County, Michigan, such period will be extended to and through the next succeeding business day in Oakland County, Michigan.
          20. Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from you to Hyperion regarding (a) any alleged breach of this Agreement by Hyperion, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to Hyperion either by U.S. mail or fax, unless such requirement is expressly and specifically waived by Hyperion. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.
          21. Independent Contractor. Hyperion is an independent contractor, and is not your employer, employee, partner, or affiliate.
          22. Subcontractors. Generally, we do not utilize subcontractors to perform onsite services; however, should we elect to subcontract a portion of those services, we will guarantee the work as if we performed the subcontracted work ourselves.
          23. Data & Service Access. Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.
          24. Counterparts. The parties intend to sign, accept and/or deliver any Quote, this Agreement, SOW or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, any SOW or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).