Online Master Services Agreement Terms & Conditions

Effective November 29, 2023

These Online Master Services Agreement Terms & Conditions (“Online T&C”) and Statement of Work (“SOW”) or Quote/Order incorporate by reference and are part of the applicable Master Services Agreement (“Agreement”), between Arctic Information Technology, Inc. (“Arctic IT”) and Client named in such SOW or Quote/Order.

  1. Term. The term of this Agreement (“Term”) shall be co-extensive with the Period of Performance stated in each SOW or Quote/Order unless sooner terminated pursuant to Section 16 of this Agreement, or the mutual written agreement of the Parties. Unless otherwise agreed by the Parties in writing (e-mail exchanged by authorized representatives of each Party, pursuant to the Notice Section 22, below), the termination of one SOW or Quote/Order shall terminate this Agreement only with respect to that SOW or Quote/Order and shall not terminate this Agreement with respect to any other SOW or Quote/Order.
  2. Definitions. When used in this Agreement, terms appearing with an initial capital letter shall have the meanings specified in Schedule 1, below.
  3. Standard of Care & Use of Third Party Providers. Unless otherwise provided in this Agreement, during the Term, Arctic IT shall perform all Services to the standard of care of a reasonably prudent IT professional applying generally accepted industry standards, performing similar services under like conditions. However, any part of the Services performed or provided by Third Party Providers (including hardware and software products) shall be delivered and performed only to the standards stated in the relevant agreement(s) between Arctic IT and such Third Party Providers. Client acknowledges and agrees that the functionality of any part of the Services supplied by Third Party Providers is subject to change, without notice, based on the terms and conditions of the relevant Third Party Provider agreements with Arctic IT, the relevant terms and conditions of such agreements can be found here: https://arcticit.com/third-party-license-agreements/ and are incorporated by reference into this Agreement.
  4. Independent Contractor. At all times when performing Services under this Agreement, Arctic IT shall be an independent contractor and not an employee, agent, joint venture, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either Arctic IT or any employee, agent, subcontractor, or Third Party Provider engaged by Arctic IT with respect to the Services. Such Arctic IT personnel shall not be entitled to the rights or benefits afforded to Client’s employees, including, but not limited to, disability or unemployment insurance, Workers’ Compensation, medical insurance, or sick leave. Arctic IT is responsible for making or providing, Workers’ Compensation, unemployment, health care, and other benefits and insurance, the payment and/or withholding of all taxes and/or payroll deductions, training expenses, permits, and licenses for Arctic IT and all of Arctic IT’s employees as required by applicable law. Arctic IT shall also be responsible for requiring subcontractors to provide the foregoing for subcontractor employees. In performing the Services, Arctic IT may, at Arctic IT’s own expense, employ any assistants, employees, subcontractors, or Third Party Providers that Arctic IT deems necessary to perform the Services. Arctic IT shall have the exclusive right and obligation to control the means and methods of performing the Services and be responsible to Client only for results. Anything to the contrary in this Agreement notwithstanding, nothing in this Agreement shall create an exclusive relationship between the Parties. Client acknowledges and agrees that Arctic IT shall have the right to provide IT services to clients and customers other than Client.
  5. Billing & Increases in Contract Rates for As Requested Consulting Services, After Hours Services, or Emergency Service Rates. Arctic IT reserves the right to increase its Contract Rates and/or After Hours & Emergency Service Rates, prospectively, in thirty (30) days prior notice to Client. The current Contract Rate Schedule is available to Client here: https://arcticit.com/arctic-it-rate-schedule/. Arctic IT invoices monthly for As Requested Consulting Service in minimum billing increments of one quarter (0.25) hour, during which such Services are rendered. Emergency and After-Hours Services are billed at minimum billing increments of one (1) hour.
  6. Travel. Should travel be required to perform the Services, Travel Expenses will be billed to Client without markup, as incurred each month during the Term. Client will pay for actual time spent by Arctic IT personnel in traveling to and from a Client worksite to perform Services. Travel Time will be billed to, and paid by Client, at one-half (1/2) of Contract Rates. When air travel is required, Travel Time begins one (1) hour before scheduled flight departure and ends when arriving at Client’s worksite or lodging. If a local (within ten (10) miles of a designated Client office) Arctic IT resource is dispatched onsite, Client will not be charged for Travel Time.
  7. Taxes. In addition to the Contract Rates or other fees or charges for the Services, as stated in the applicable SOW or Order/Quote, Client shall pay or reimburse Arctic IT for all taxes however designated (and any amount legally levied instead of taxes) resulting from or related to the performance of the Services, except for taxes on or relating to the net income of Arctic IT and unemployment, Social Security and payroll taxes on Arctic IT personnel and subcontractors. If Client claims exemption from any taxes resulting from or related to the performance of the Services, Client shall provide Arctic IT with the documentation required by the taxing authority to support such exemption. To the extent that Client is required to reimburse Arctic IT for any taxes, Arctic IT shall invoice Client for such taxes, which shall be Due Upon Receipt.
  8. Time Limit to Dispute Invoice. Client will notify Arctic IT in writing of any error, inaccuracy, or inadequacy in any of the billings included on any invoice within forty-five (45) days of the date of the invoice. Failure to timely notify Arctic IT of any disputed Contract Rates, fees or charge(s) on an invoice, will be deemed an acceptance by Client of all invoiced amounts included therein and a knowing and voluntary waiver of Client’s right to dispute the invoice in whole or in part.
  9. Confidential Information. Subject to Section 15a below, each Party acknowledges that its employees, agents, and subcontractors may be exposed to Confidential Information of the other Party in the course of performance of this Agreement. Subject to the limitations of Section 15a below, each Party acknowledges and agrees, with respect to the Confidential Information of the other Party, as follows:
    • Each Party is the sole owner of all right, title, and interest in and to all of its own Confidential Information.
    • Each Party shall treat all Confidential Information of the other Party (“Disclosing Party”) in a confidential manner and not use or disclose or cause such Confidential Information to be used or disclosed, except as necessary to perform their respective obligations under this Agreement, or as may be specifically authorized in writing by the Disclosing Party.
    • Before making any disclosure of Disclosing Party’s Confidential Information pursuant to a requirement of federal, state, or local law or regulation or a valid order issued by a court or governmental agency of competent jurisdiction (“Legal Order”), a Party who has received Confidential Information (“Receiving Party”) shall provide the Disclosing Party with prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy. If, after providing such notice as required herein, a Receiving Party remains subject to a Legal Order to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which such Legal Order specifically requires.
    • The obligations set forth in this Section 9 supersede and replace entirely, any previous Non-Disclosure or Confidentiality Agreement executed between the Parties, and shall continue for a period of three (3) years from the date of the receipt of Confidential Information or three (3) years from the date of termination of this Agreement, whichever occurs last.
  10. Representations and Warranties.
    • No Warranties regarding data restoration. Arctic IT will use its Best Efforts to deploy the Services and make effective recommendations regarding data protection technologies but cannot affect the manufacturer’s product from a warranty perspective, nor guarantee that such Third Party products or technologies will be effective, free of bugs or other defects. The recoverability of data in the event of network or system failure is subject to the integrity of the media, the success of backup procedures, and other factors that may be outside the control of Arctic IT. Therefore, Arctic IT cannot and does not make any representations, promises, or warranties that Client will be able to restore data as a result of following any such Arctic IT recommendations.
    • No Warranties Regarding Security of Client Confidential Information from Electronic Threats & Hacking. In providing the Services, Arctic IT shall use Best Efforts to see that Client Confidential Information is kept secure; however, Client understands, acknowledges, and agrees as follows:
      • The nature of the Internet, e-mail, and other forms of electronically storing and communicating information are subject to ever-changing and evolving vulnerabilities, some, or all of which cannot be reasonably anticipated or protected against, even with the use of reasonable care to industry standards, including, without limitation, Electronic Threats & Hacking.
      • Anything in this Agreement or the description of Services to the contrary notwithstanding, Arctic IT makes no representation, warranty, or guarantee that Client’s Confidential Information or IT systems will be protected from breach or exposure by Electronic Threats & Hacking.
      • The rates and fees Client pays to Arctic IT under this Agreement have been set with the foregoing limitations on Arctic IT’s obligation to protect and secure Client’s Confidential Information and IT systems from Electronic Threats & Hacking; Arctic IT would have charged substantially higher rates or fees if Arctic IT had been willing to take on any such obligations to protect Client Confidential Information or IT systems from Electronic Threats & Hacking (which Arctic IT cannot and will not take on as a contractual or other obligation).
    • Client Warranty. Client hereby represents and warrants that the execution, delivery, and performance of this Agreement does not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment, or decree to which Client is a party or by which it is bound.
    • Arctic IT Limited Service Warranty & Exclusive Remedies for Breach of Warranty. Arctic IT represents and warrants that the Services it performs with its personnel and employees shall be performed in a competent and workmanlike manner, in accordance with the standard of care set forth in Section 3 Standard of Care & Use of Third Party Providers, above. If Client notifies Arctic IT, in writing (email exchange through authorized representatives of the Parties is acceptable) and in reasonable detail, of the nature and extent of a failure in Service within thirty (30) days after the completion of the applicable Service(s), Arctic IT shall re-perform or cure any portion of such Service(s) that fails to satisfy the foregoing limited warranty. If Arctic IT determines that it is unable to re-perform or cure the Service(s) in a manner that complies with the foregoing warranty through the exercise of Best Efforts, Arctic IT shall, at its discretion, refund Client the fee(s) paid for the portion of the Service(s) which failed to meet such warranty standard. The foregoing remedies of re-performance, cure, or discretionary refund of fee(s) shall be Client’s sole and exclusive remedy for any Arctic IT breach of warranty under this Agreement.
    • Limited Warranty From Third Party Providers. To the extent authorized under applicable Third Party manufacturer or Third Party Provider agreements, Arctic IT shall provide or assign to Client all Third Party product or service warranties associated with the hardware, equipment, software, or other services the Third Party provided in connection with the Services under this Agreement. Client acknowledges and agrees that:
      • Third Party Provider agreements for hardware, equipment, software, or services provided in connection with the Services, vary in the terms, conditions, and limited warranties they respectively provide; and some Third Party Provider agreements either may not provide any warranties or may prohibit Arctic IT from transferring to Client any limited warranty they do provide;
      • Arctic IT does not and will not provide any separate, independent, or concurrent warranty of any kind or nature for Third Party hardware, equipment, software, or services provided in connection with the Services; and
      • Client shall make any warranty claims with respect to hardware, equipment, software, or services supplied by Third Parties in connection with the Services, directly to the manufacturer, vendor, licensor, or Third Party Provider of such hardware, equipment, software, or services, and not to Arctic IT.
    • Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, THE SERVICES ARE PROVIDED “AS-IS,” OR “WHERE-IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARCTIC IT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SERVICES. ARCTIC IT EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING, OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. USE OF THE SERVICES IS ENTIRELY AT CLIENT’S OWN RISK AND, EXCEPT AS SET FORTH IN THIS SECTION 10, ARCTIC IT SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR SUCH USE.
  1. Client Obligations & Acceptable Use. Client acknowledges and agrees that (a) Arctic IT has no control over any content stored or transmitted by Client or its employees, agents, invitees, or customers through any of Client’s systems, including, but not limited to, any Arctic IT controlled or provided IT system; (b) Arctic IT does not routinely monitor the content stored or transmitted through Client’s systems. Therefore, Client shall defend, indemnify and hold harmless Arctic IT, its parent(s), subsidiaries and affiliates; all of their respective owners, shareholders, members, directors, officers, agents, employees, and contractors; and any and all of Arctic IT’s Third Party Providers performing all or any part of the Services, from and against any and all Claims arising out of, pertaining to, or imposed as a result of the data, documents, records, information, messages or content (collectively “Content”) stored or transmitted by Client or any of Client’s employees, agents, invitees or customers, through or in connection with any of Client’s systems, including, without limitation, any electronic media, device, server, hardware, equipment, software or service(s) that make up all or any portion of Client’s IT systems or Services, including, without limitation, any Content that contains personal identifying information (“PII”), credit card or bank account identifying information, personal health information protected by law. In addition, with respect to any Content which is unlawful, pornographic, obscene, indecent, harassing, racially or ethnically offensive, harmful, threatening, discriminatory or defamatory, or which facilitates or promotes illegal activity, infringes on any Third Party intellectual property rights or is otherwise in violation of law, this Agreement or any applicable Third Party Provider agreement for the Services (collective “Prohibited Content”), Arctic IT shall have the right, but not the obligation, to immediately remove any Prohibited Content from Arctic IT owned or controlled IT Systems, without prior notice or liability to Client, where Arctic IT reasonably suspects that such Content is prohibited by applicable law, the provisions of this Agreement or any applicable Third Party Provider agreement. Client is responsible for determining whether the Services are appropriate for storage or processing of information subject to any specific law or regulation and for using the Services in a manner consistent with Client’s legal and regulatory obligations. Client is also responsible for responding to any requests from a Third Party regarding Client’s use of the Services, e.g., a request to modify or delete Content or to provide notice of or report a data security/breach, under the U.S. Digital Millennium Copyright Act, the European Union General Data Protection Act, the California Consumer Data Protection Act, or other applicable laws. Any notice Client may receive from Arctic IT under any applicable law governing reporting of a data security/breach shall not constitute an admission of fault, guilt, or liability with respect to the incident that is the subject of such notice or report.
    1. Obligation to Report Unauthorized Access or Fraudulent Use of Services. Client shall promptly report to Arctic IT if it becomes aware of any fraudulent or unauthorized use of any of the Services. Arctic IT reserves the right to restrict, suspend or discontinue providing any or all of the Services in the event of any suspected or actual fraudulent or unauthorized use by Client or any Third Party. Arctic IT shall not be liable for any damages whatsoever resulting from such fraudulent or unauthorized use of any of the Services.
  2. Custom Code and/or Custom Reports. Any Custom Code or Custom Reports requested by Client and written or otherwise created by Arctic IT shall be owned by Client, but Arctic IT shall retain a royalty-free, worldwide, unrestricted license and right to use and sell the Custom Code or Custom Reports in whole or in part. The Source Code used by Arctic IT to create or write Custom Code or Custom Reports will only be provided to Client once payment for all outstanding invoices has been received in full and/or both Parties are satisfied that all obligations under this Agreement have been met.
  3. Insurance. During the Term, each Party shall provide and maintain, at its own expense, the following insurance with limits of liability as set forth below:
    • General Liability insurance covering, among other things, contractual obligations under this Agreement, with single limits coverage of at least Two Million Dollars ($2,000,000);
    • Workers’ Compensation coverage in at least the statutorily required amounts;
    • Employer’s Liability coverage in at least the same amount as General Liability coverage set forth above;
    • Automobile Liability Coverage for owned, unowned, rented, and/or leased motor vehicles as applicable, including uninsured and underinsured motorist coverage in at least One Million Dollars ($1,000,000);
    • Media, Tech, Data & Network Liability coverage of at least Five Million Dollars ($5,000,000). Provided that such coverage remains available and is reasonably affordable.All such insurance coverages shall be placed with responsible carriers reasonably acceptable to the other Party; and each Party shall name the other Party, its parent, subsidiaries, and affiliates as additional insured (except for Workers’ Compensation and Employer’s liability coverage). Upon request, each Party shall promptly provide the other Party with a Certificate of Insurance as evidence of coverage as required under this Agreement.
  1. Indemnity. Client (the “Indemnitor”) agrees to defend, indemnify and hold harmless Arctic IT, its parents, subsidiaries, and affiliates; and all of their respective owners, shareholders, members, directors, officers, agents, employees, and contractors (each an “Indemnified Party”) from and against, any and all Claims arising out of or connected with the performance of this Agreement, except to the extent caused by the negligence, gross negligence or willful misconduct of the Indemnified Party, its agents, employees or contractors, in performing, or failing to perform obligations under or with respect to this Agreement.
  2. Limitations on Liability & Cap on Damages.
    • Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, OR BUSINESS INTERRUPTION) ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
    • Cap on Damages. As a condition precedent to entering this Agreement, each Party acknowledges, understands, and agrees, as follows: THE TOTAL AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE TOTAL PROFESSIONAL FEES PAID BY CLIENT TO ARCTIC IT PURSUANT TO THIS AGREEMENT FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO A CLAIM OF LIABILITY.
    • Exceptions to Limitation on Liability and Cap on Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 15, AND EXCEPT AS PROVIDED TO THE CONTRARY IN ANY APPLICABLE THIRD PARTY PROVIDER AGREEMENT FOR THE SERVICES, THE LIMITATIONS ON LIABILITY AND CAP ON DAMAGES SET FORTH IN THIS SECTION 15 SHALL NOT APPLY TO:
      • ANY CLAIM FOR INDEMNIFICATION UNDER THIS AGREEMENT, TO THE EXTENT OF AVAILABLE CONTRACTOR INSURANCE COVERAGE ACTUALLY AVAILABLE AND APPLIED.
      • ANY CLAIM INVOLVING WILLFUL REPUDIATION OF THIS AGREEMENT BY EITHER PARTY; OR
      • ANY CLAIM BY A PARTY FOR WHICH LIQUIDATED DAMAGES IS PROVIDED UNDER THIS AGREEMENT.
      • ANY CLAIM BY ARCTIC IT INVOLVING INFRINGEMENT OF ARCTIC IT’S INTELLECTUAL PROPERTY RIGHTS (OR THAT OF A THIRD PARTY PROVIDER).
    • Release. Client, on behalf of itself and any affiliates or subsidiaries, releases Arctic IT and all of its parents, subsidiaries, and affiliates from any and all liability in excess of the limited liabilities that are set forth in this Agreement, including any claim for common law or statutory indemnity or contribution, whatsoever. Client acknowledges and agrees that it is entering this Agreement for business purposes only and therefore knowingly and voluntarily releases any Claim(s) under any consumer protection law(s), to the maximum extent permitted under applicable law.
  1. Termination.
    • Termination for Breach or Insolvency. At any time during the Term, either Party may, in addition to any other rights or remedies available to it at law or in equity, immediately terminate this Agreement if any of the following events shall have occurred:
      • The other Party shall fail to cure any material default in any performance obligation or duty contained in this Agreement, and such default shall continue for ten (10) days for default involving the payment of money, or thirty (30) days for all other defaults, after written notice and opportunity to cure has been given to the breaching Party by the non-breaching Party;
      • The other Party shall have commenced a voluntary case or other proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall take any corporate action to authorize any of the foregoing; or
      • An involuntary case or other proceeding shall be commenced against the other Party seeking liquidation, reorganization, or other relief with respect to it or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property; or an order for relief shall be entered against the breaching Party under the federal bankruptcy laws as now or hereafter in effect.Subject to the provisions of Section 15 Limitation on Liability & Cap on Damages, termination of this Agreement shall be in addition to any other rights or remedies the Parties may have under this Agreement, applicable law, or in equity.
    • Effect of Termination by Client Without Cause. At any time during the Term, if Client elects to terminate this Agreement without cause, i.e., without material breach by Arctic IT, then Client shall be liable to Arctic IT for the following: (i) fees for all outstanding Services performed through the date of termination (billed or unbilled); (ii) an early termination charge equal to fifty percent (50%) of the current Monthly Recurring Service Fees (if any), multiplied by the number of months remaining in the existing Term; (iii) Emergency charges, if any, accrued but unpaid as of the termination date; and (iv) any Third Party Provider charges and/or out-of-pocket expenses incurred by Arctic IT as a direct result of Client’s breach or cancellation (e.g., cancellation charges or annual software license Fees). The Parties agree that the foregoing amounts constitute liquidated damages and are not intended as a penalty, nor subject to the Limitation on Liability and Cap on Damages set forth in Section 15 above.
  1. Dispute Resolution.
    • Informal Dispute Resolution. If a dispute should arise between the Parties regarding the performance of this Agreement, before exercising any other remedies at applicable law or in equity, one Party shall notify the other of the details of the dispute and request a meeting to informally resolve the issue. Upon receipt of any such notice, both Parties shall act in good faith to promptly meet and make good faith efforts to resolve the dispute informally within ten (10) business days. Such meeting shall occur in person or via teleconference or videoconference, with both Parties represented by management personnel with actual authority to resolve the dispute.
    • Mandatory Non-Binding Mediation. In the event that informal efforts under Section 17a are ineffective, the Parties shall cooperate to promptly engage in mandatory, non-binding mediation before a mediator qualified to resolve IT service contract disputes. Each Party shall bear its own mediation costs and the two Parties shall each pay one-half (1/2) of the Mediator’s fee. The mediator shall be chosen by mutual agreement of the Parties; and if the Parties cannot agree upon a Mediator, each Party shall nominate a Mediator and the two nominated Mediators shall agree upon a third Mediator. The Mediator so selected shall act as the designated Mediator for non-binding Mediation under this Agreement.
    • Other Remedies. If informal dispute resolution and mandatory non-binding mediation under this Section 17a and 17b shall have failed to resolve the dispute, only then may either Party seek any remedy available under applicable law or in equity.
  2. Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (excepting only Client payment for Services when due) to the extent such failure or delay is proximately caused by circumstances beyond that Party’s reasonable control and occurring without its fault or negligence, including, without limitation, force majeure events such as any of the following: an act of God, an act of the public enemy, terrorism, mass shootings, inclement weather, civil unrest, earthquake, labor actions, tsunami, flooding, fire, epidemics, pandemics, quarantine restrictions, work stoppage, volcanic eruption, avalanche, tornado, extreme temperatures, any National Weather Service named or Category IV or higher storm or hurricane; material changes in applicable laws, rules or regulations adversely impacting the Services, failure of suppliers, Third Party Providers or carriers to meet performance obligations or provide Services under this Agreement. As a condition precedent to a claim of force majeure, the Party experiencing the difficulty shall give the other Party prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay caused by a force majeure event.
  3. Covenant Not to Hire. Each Party agrees not to solicit or offer employment to any employee, contractor, or subcontractor of the other Party (collectively “Employee”), directly or indirectly (i.e., through any parent, subsidiary, or affiliate) during the Term or within an eighteen (18) month period following the expiration or sooner termination of this Agreement. Should either Party hire an Employee of the other Party during or within eighteen (18) months of the expiration or sooner termination of this Agreement, the hiring Party shall pay to the other Party $75,000 as liquidated damages (and not a penalty), representing a reasonable estimate of the actual costs for personnel replacement. Both Parties acknowledge and agree that the foregoing liquidated damages are not subject to Section 15, above on Limitations on Liability & Cap on Damage. The provisions of this Section 19 shall not apply to any Employee voluntarily responding to a publicly posted job opening with the other Party; provided, that the other Party took no other action to solicit the Employee’s application.
  4. Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred by either Party without the prior written consent of the other Party, whose consent shall not be unreasonably withheld; provided, however, that Arctic IT may transfer or assign all or part of its performance obligations under this Agreement to an affiliate or subsidiary entity within the Doyon, Limited family of companies, without consent of Client.
  5. Severability. Should any term or provision of this Agreement, or any portion thereof, be deemed invalid or unenforceable by a government agency or court of competent jurisdiction, such invalidity or unenforceability shall not affect the enforceability of the remaining portions of this Agreement, which shall remain valid in accordance with its terms.
  6. Notice. All notices and other communications that are required or may be given under this Agreement shall be in writing and personally delivered, or sent electronically by e-mail with confirming read receipt or original reply message which shall not be unreasonably withheld or delayed, or sent via certified mail, return receipt requested, postage prepaid, addressed to the authorized representative of each Party identified in the applicable SOW or Order/Quote.
  7. Governing Law, Jurisdiction & Venue. This Agreement shall be interpreted, construed, and enforced in accordance with the laws of the State of Alaska, without reference to its choice of law provisions. All proceedings, judicial or otherwise, arising out of, or relating in any manner whatsoever to this Agreement, shall be subject to the jurisdiction and venue of the Superior Court for the State of Alaska, Third Judicial District, at Anchorage, Alaska, or the federal court for the District of Alaska, at Anchorage, Alaska. Each Party submits to the exercise of personal jurisdiction by such courts for all purposes relating to this Agreement.
  8. Amendment. Any changes or additions to this Agreement shall made in writing and signed by authorized representatives of each Party identified in the applicable SOW or Order/Quote (electronic document such as Adobe pdf, with electronic signature, such as DocuSign, are acceptable). Anything in this Agreement to the contrary notwithstanding, If Client pays or continues to pay, for the Services that are the subject of an amended or new SOW or Order/Quote, without sending written notice of objection to Arctic IT within 30 days after confirmed receipt of a copy of the amended or new SOW or Order/Quote, the amended or new SOW or Order/Quote shall be deemed accepted by Client and become part of this Agreement, regardless of whether such SOW or Order/Quote has been signed by Client.
  9. Rules of Interpretation and Construction. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. Both Parties acknowledge and agree that they each have had the opportunity to review this Agreement with legal, tax, and financial counsel of their choice, at their own expense, so any rule of construction that a contract be construed against the drafter shall not apply.
  10. Counterparts. The MSA or any SOW or Order/Quote may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email, or other means of electronic transmission, shall be deemed to have the same legal effect as delivery of an original, signed, hard copy of this Agreement.
  11. Entire Agreement. This Agreement, together with each separate and applicable SOW or Order/Quote is fully integrated and constitutes the entire agreement and final written expression of the Parties, and supersedes all prior or contemporaneous statements, quotes, estimates, promises, representations, or agreements, of any kind or nature, between the Parties made in written, oral, electronic or any other format, with respect to the subject matter of each such SOW or Order/Quote.

Schedule 1

DEFINITIONS

When used in this Agreement, the following terms shall have the meaning specified or defined below:

  1. “After Hours” means any time Services are performed by Arctic IT at Client’s request, outside of regular Hours of Operation or on Holidays.
  2. “After Hours Rates” apply to Client requests for Services to be performed outside of Arctic IT’s regular Hours of Operation, including either additional Services or requests for After Hours Services.
  3. “Application(s)” means software programs that are designed to perform specific functions on Client systems for end users.
  4. “As Requested Consulting Services” means general IT or Application services requested by Client, from time to time that Arctic IT elects to perform. As Requested Consulting Services actually performed by Arctic IT will be billed at Contract Rates.
  5. “Best Efforts” means commercially reasonable efforts made by Arctic IT in good faith, but with no guarantee or warranty of results.
  6. “Claims” means any and all demands, actions, suits, liabilities, claims, penalties, judgments, losses, damages, costs, interest, or fees, of any kind or nature, including, without limitation, legal costs, and attorneys’ fees.
  7. “Confidential Information” means any of the following in the ownership, custody, or control of a Party: business or financial information pertaining to the Party’s operations, personally identifying information of the Party’s customers or employees, the Party’s customer lists, and/or any other sensitive documents, files, data, information or records, in any format or media, that if disclosed would result in a business, competitive or reputational disadvantage to such Party, including without limitation, personal identifying information of Client’s employees and/or customers, bank or financial account numbers, credit card, and credit report information, account pin codes, passwords or other security credentials, personal identifying health care information, social security or taxpayer ID numbers, and the like. Confidential Information shall not include information that (i) is or becomes part of the public domain through no act or omission of either Party; (ii) was in lawful possession of a receiving Party prior to disclosure by the other Party and had not been obtained by the receiving Party directly or indirectly from the disclosing Party; (iii) is lawfully disclosed by a Third Party without restriction on disclosure; or (iv) is independently developed by either Party without the use of or reference to the other Party’s Confidential Information.
  8. “Contract Rates” means on a time and material basis at Arctic IT’s then-current rates, which are incorporated by reference, and may be found here: https://arcticit.com/arctic-it-rate-schedule/.
  9. “Custom Code” means specialized Source Code developed to extend or modify the functionality of purchased or acquired software. There is usually a specific Client business reason to consider developing Custom Code. Custom Code may require testing and changes when upgrading purchased or acquired software to maintain usability.
  10. “Custom Reports” means to create specific reports, queries, or data sets that display data and information according to Client specified requirements, as opposed to using standard reports that come with software programs or Applications.
  11. “Designated Applications” means the software Applications (running in the cloud or on-premises) that are included in Monthly Recurring Services. Designated Applications may be subject to additional Client requests for Services and/or Emergency Services, depending on the circumstances.
  12. “Designated Systems” means the computer hardware, servers, workstations, operating system(s), desktop software programs, and related items that are the subject of Monthly Recurring Services. Designated Systems may apply to Consulting Services and/or Emergency Services, depending on the circumstances.
  13. “Electronic Threats & Hacking” means data loss, exposure or corruption from power outages, equipment failures, software failures, viruses, malware, phishing or scamming, spam, hacking, ransomware, spyware, Trojan horses, worms, or the like not caused by the intentional misconduct of a Party.
  14. “Emergency” means a Client declared emergency where Arctic IT is directed by Client to provide responsive Services immediately.
  15. “Emergency Rates” means Arctic IT’s then current Emergency Rates for Services. Emergency Rates will be subject to a minimum charge of one (1) hour.
  16. “Expenses” means Client authorized out-of-pocket expenses incurred to perform Services or Emergency Services, including, without limitation, airfare, rental car, tolls, parking, transportation service, lodging, meals, long-distance phone charges, expedited shipping charges, and other relevant expenses. The Federal Per Diem Schedule will be used for food and incidentals when Arctic IT personnel travel to and from Client worksite to perform Services. Arctic IT may charge Client for mileage at the then-current Federal mileage reimbursable rate for any travel required by Arctic IT personnel that is more than ten (10) miles from an established Arctic IT office.
  17. “Go-Live Date” means the date when all prerequisites agreed upon by the Parties have been accomplished and the delivery of the Services described in any particular Exhibit actually commences.
  18. “Holiday(s)” means the following U.S. holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the Friday following Thanksgiving, Christmas Eve, and Christmas Day. If a Holiday falls on a Saturday, it will be observed on the Friday before; if a Holiday falls on a Sunday, it will be observed on the Monday following. Services performed on Holidays are billed at After Hours and Emergency rates.
  19. “Hours of Operation” means from 8 AM – 5 PM (local time) Monday through Friday, except for Holidays.
  20. “Monthly Recurring Services” means those Services selected by Client in the SOW or Order/Quote that are billed on a flat rate basis, each month.
  21. “Periodic Recurring Services” means those Services selected by Client in the SOW or Order/Quote that are billed on a flat rate basis, at a defined interval (quarterly, semi-annually, or annually).
  22. “Project Consulting Services” means Services for a specifically identified project, requested by an authorized representative of Client that Arctic IT agrees to perform. Project Consulting Services shall be documented in writing in an SOW or Order/Quote and approved, in advance, by an authorized representative of each Party. Project Consulting Services will be billed at Contract Rates or Fixed Fee as set forth in the SOW or Order/Quote.
  23. “Source Code” means a computer program (set of instructions) written in a programming language by a human being, that when processed into object code (e.g., binary code) will cause the computer to perform the program.
  24. “Statement of Work” or “SOW” means the document, attached as an Exhibit to this Agreement, that summarizes and describes the requirements for Arctic IT to successfully provide Services to Client. The SOW is used as a basis for day-to-day decisions, such as the Project-specific activities, deliverables, and timelines for the performance of the Services and Client payment obligations.
  25. “Third Party” means any person not a Party to this Agreement. “Third Party Provider” means any Third Party engaged by Arctic IT to provide some or all of the contracted Services, including without limitation, software or hardware vendors. In specific SOWs for Services such as Custom Code and Custom Reports, that are performed on a time and materials basis, the definition of “Third Party Provider” may be changed in the SOW, to exclude subcontractors specifically engaged to assist Arctic IT personnel with original coding or other Services that would normally be provided by Arctic IT employees to Client.
  26. Travel Expenses” means Client authorized out-of-pocket Travel Expenses incurred in the course of the Services, including, without limitation, airfare, rental car, tolls, parking, lodging, meals, and other relevant expenses. The Federal per diem schedule will be billed for food and incidentals when Arctic IT personnel travel to and from Client’s worksite to perform Services. Arctic IT may charge Client for mileage at the then-current Federal mileage reimbursable rate for any travel required by Arctic IT personnel that is more than ten (10) miles from an established Arctic IT office.