The following terms and conditions govern our 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. This master services agreement (this “Agreement”) governs all services that American Virtual Cloud Technologies, Inc., including its subsidiaries and affiliates, a Delaware corporation that maintains an office for business at 1720 Peachtree Street, Suite 629, Atlanta, Georgia 30309 (“us”, “our”, “we” or “AVCT”), performs for you, as well as any licenses, services, or products that we sell or re-sell, to you (collectively, the “Services”).
- SOWs. The Services are not described in this Agreement; instead, you will be provided with a service quote, proposal, service order, or statement of work that describes the products or Services to be provided by AVCT (each, a “SOW”). By accepting the SOW, you agree to the terms of this Agreement. If you do not agree with the terms of the SOW and the terms of this Agreement, then you should not accept the SOW and you should contact AVCT for further information.
- 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, except in situations involving warranties or limitations of liability. 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.
- 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 you and we mutually agree to such activity.
- Requirements. At all times, all software on the Environment must be genuine and licensed, and you agree to provide us with proof of such licensing upon our request. 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 our Services to you.
- 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 required 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.
- 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 or exceed $300, we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require otherwise.
- Advice; Instructions. From time to time, we may provide you with specific advice and directions related to the Services (“Advice”). For example, our Advice may include increasing server or storage capacity, network and infrastructure updates, or replacing obsolete equipment. 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.
- 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 onboarding activities, must be completed.
- 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 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.
- Insurance. If you are supplied with AVCT Equipment (defined below), you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. AVCT must be listed as an additional insured 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 AVCT. 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. 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. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption. 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). Generally, all prices quoted in a SOW anticipate automatic monthly recurring payment by you. Payments by any other methods may result in increased fees or costs.
- Schedule. Unless otherwise indicated in a SOW, you will be invoiced prior to the calendar month in which the Services are to be provided to you, and subject to credit approval (in AVCT’s discretion), payment terms will be Net 30 days. 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.
- Timing of Services. Various factors may impact the exact date on which Services will be commenced and the timing of payments may be connected to commencement.
- Nonpayment. Undisputed 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 after the applicable Service is rendered or the date on which you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. A re-connect of up to five percent (5%) 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.
You hereby grant to AVCT 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 to provide the Services. 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 AVCT 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. AVCT 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.
LIMITATIONS OF LIABILITY
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 AVCT would not enter into any SOW or this Agreement unless AVCT 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, such as lost revenue, loss of profits (except for fees due and owing to AVCT), 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, (i) reasonable attorneys’ fees awarded to a prevailing party (as described below), (ii) your indemnification obligations, and (iii) any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation. Except for the specific exceptions listed in the preceding sentence, 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 AVCT under the SOW 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.
Each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.
- 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.
- Automatic Renewal. Unless sooner terminated pursuant to this Agreement, each SOW under which managed and/or consulting services are provided to you will automatically renew upon the end of that SOW’s initial term for a single additional twelve (12) month period (“Renewal Term”). You may avoid an automatic renewal of the SOW by providing us written notice of non-renewal no less than ninety (90) days prior to the end of the initial term of the SOW.
- Termination Without Cause. Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, a SOW is in progress. In addition, no party will terminate a SOW without cause prior to the SOW’s natural expiration date. Notwithstanding the foregoing, if AVCT decides to cease providing a service to all of its customers generally, then AVCT 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 AVCT’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.
- 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 AVCT terminates this Agreement or any SOW For Cause, or if you terminate any SOW without cause prior to such SOW’s expiration date, then AVCT shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to AVCT 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 properly delivered and accepted by you up to the effective date of termination.
- Client Activity As A Basis for Termination. In the event that (i) any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the Environment or any part of the Environment to malfunction consequently requiring remediation by AVCT on three (3) occasions or more (“System Malfunction”), and if under those circumstances, you fail to remedy, repair or replace the System Malfunction as directed by us (or you fail to cease the activity causing the System Malfunction, as applicable), or (ii) you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then AVCT will have the right, upon ten (10) days prior written notice to you, 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.
- Consent. You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time. We reserve the right to require termination fees before consenting to terminating a SOW or this Agreement prematurely.
- 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 AVCT-owned equipment or software (collectively, “AVCT Equipment”) is located to enable us to remove all AVCT Equipment from the premises. If you fail or refuse to grant AVCT access as described herein, or if any of the AVCT Equipment is missing, broken or damaged (normal wear and tear excepted) or any of AVCT-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.
- Transition; Deletion of Data. In the event that you request AVCT’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 AVCT 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. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, 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 data in our possession or control beyond fifteen (15) calendar days following the termination of this Agreement. We will be held harmless for, 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. 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 response or 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.
- 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 Central 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.
- 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”).
- 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.
- 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”).
- Defined. For the purposes of this Agreement, 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. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of by us, (ii) was developed independently by us, or (iii) is or was lawfully and independently provided to us prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
- Use. We will keep your 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 our obligations under this Agreement.
- Due Care. We will exercise the same degree of care with respect to the Confidential Information we receive from you as we normally take to safeguard and preserve our own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
- Compelled Disclosure. If we are 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 we are not prohibited by law from doing so, we will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section. We will use its best efforts, at your 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, we may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that we have been advised, by written opinion from our counsel, that we are legally compelled to disclose.
- 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.
ADDITIONAL TERMS; THIRD PARTY SERVICES
- 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 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.
- Third Party Services. 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 AVCT or to you.
- 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.
- 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.
- Records. We will keep and maintain all records of the Services for a period of three (3) years after the termination of this Agreement to substantiate all invoices paid, and Services provided, under each SOW.
- Equipment. Unless otherwise noted in a SOW or Order, all AVCT 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 AVCT Equipment shall immediately terminate, and thereafter all AVCT Equipment must be returned to us immediately at your expense. All configurations on the AVCT Equipment are our proprietary information and will not be circumvented, modified, or removed by you without our prior written consent.
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 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.
Except for undisputed collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) or if there is no AAA-certified arbitrator available within a ten (10) mile radius of our office, then by any arbitration forum as determined by us, pursuant to the forum’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property, and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.
- 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.
- 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.
- 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 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). In addition, you are required to obtain and maintain at all times, and at your cost, cyber insurance covering at a minimum, the theft or misuse of private or confidential information, the breach of networked and managed security systems, and any failure to prevent the transmission of computer malware.
- 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 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. The restrictions set forth in this Section shall not apply where the solicitation or hiring activity occurred in response to a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, and the hired employee freely responded to same.
- Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed 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.
- 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.
- 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 AVCT, specifically refers to this Agreement or the SOW being amended, and is accepted in writing (email or electronic signature is acceptable) by you.
- 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.
- 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.
- 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.
- Merger. This Agreement together with any and all 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 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.
- 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.
- 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.
- Insurance. AVCT will maintain, at its expense, the following insurance:
|TYPE OF INSURANCE||Limits|
|GENERAL LIABILITY||$1,000,000 Each Occurrence
$2,000,000 General Aggregate
|AUTOMOBILE LIABILITY||$1,000,000 Combined Single Limit|
|$5,000,000 Each Occurrence
AND EMPLOYERS’ LIABILITY
|$1,000,000 Each Accident|
|PROPERTY IN TRANSIT||$1,000,000|
|EMPLOYEE THEFT OF CLIENT PROPERTY||$5,000,000|
- Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of Delaware. You hereby irrevocably consent to the exclusive jurisdiction and venue of Fulton County, Georgia, for any and all claims and causes of action arising from or related to this Agreement.
- 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.
- 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 AVCT in any manner the terms of this Agreement.
- Business Day. If a time period set forth in this Agreement expires on a day other than a business day in Fulton County, Georgia, such period will be extended to and through the next succeeding business day in Fulton County, Georgia.
- 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 AVCT regarding (a) any alleged breach of this Agreement by AVCT, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to AVCT either by U.S. mail or fax, unless such requirement is expressly and specifically waived by AVCT. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.
- Independent Contractor. AVCT is an independent contractor, and is not your employer, employee, partner, or affiliate.
- Subcontractors. Generally, we do not utilize subcontractors for 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.
- 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.
- Counterparts. The parties intend to sign, accept and/or deliver 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 this Agreement, any SOW, or any amendment electronically (g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).
ADDITIONAL TERMS APPLICABLE TO ALL SERVICES
Unless otherwise expressly stated in a SOW, the following terms and conditions shall apply to our provision of Services:
- Licensure. All software in any environment monitored or managed by AVCT must be genuine and licensed.
- Fee Adjustments. Client’s minimum monthly may be adjusted based upon on the following conditions (collectively, “Allowable Adjustment Conditions”):
- The specific plan options selected by Client;
- The number of employees accessing Client’s data network; and,
- Client’s ongoing compliance with all of the following obligations:
- Client will allow AVCT to create an Internet Protocol security (“IPsec”) virtual private network (“VPN”) for management and monitoring purposes between AVCT Network Operations Center (“NOC”) and Client’s Network;
- Client will allow AVCT to install certain software and/or equipment required for remote access and/or monitoring, patch management and fault tolerance on Client’s equipment; and Client acknowledges that additional or one-time charges may be associated with the installation of such equipment;
- Client will allow AVCT to refresh technology (including, without limitation, upgrade, replace, augment, enhance, etc.) the AVCT systems and applications used by AVCT to provide the Services to the extent provided to Client by AVCT for this Total Care Plan, at a level and with a frequency that will enable AVCT at all times to perform and provide the Services in accordance with this Total Care Plan. The monthly service fees may if mutually agreed upon be adjusted for specific enhanced services and listed in a separate Amendment.
- Minimum Recurring Fees. Provided that Client’s minimum monthly plan fee does not decrease below the initial monthly plan fee agreed upon by Client, Client may also add or remove Services from the service plan, and/or add (but not remove) products to the service plan, by providing written notice to AVCT (which notice may be provided by e-mail). If Services and/or Products are added to the service plan, (a) the applicable fee(s) will be increased to accommodate the additional services or products for the balance of the then-current term. If Services are removed from the service plan, the service plan fee will be decreased to accommodate the decreased amount of services. Under no circumstances will any monthly equipment lease fee be reduced without AVCT’s consent.
- Increases. We reserve the right to increase our fees by providing no less than thirty (30) days prior written notice to you; however, we generally endeavor to refrain from increasing our fees by more than five percent (5%) unless market conditions require us to do so. Should this occur, we will explain the circumstances to you and work in good faith to keep the increases narrowly tailored to cover our increased costs and expenses.
- Supported Locations. On-site services (if any) will be limited to Client’s primary location listed in the applicable SOW. Additional service locations may be available at additional cost; please speak with your technician for more information.
- Service Levels. Unless otherwise expressly stated in a SOW, AVCT shall use reasonable efforts to achieve 99.9% uptime for the Services, as measured over a calendar month. In the event that AVCT fails to meet this goal Client shall be eligible for a credit of 5% of the applicable monthly service fees for each one-hour (1) hour of service downtime experienced up to 100% of the applicable monthly service fee. Third Party pass-thru charges including but not limited to, software licensing and internet carrier charges, as well as, charges for equipment leases, rentals and onboarding fees are not eligible for this service credit.
All requests for service credits must be received by AVCT within seven (7) days after the date on which the outage or missed service level occurred. No Service Credits will be given for service interruptions outside of the control of AVCT, or interruptions (i) caused by the action or failure to act by Customer, (ii) due to failure of any equipment or software provided by Customer, (iii) which are the result of scheduled maintenance, (iv) due to a force majeure event, (v) caused by the internet service provider, or (vi) resulting from Client’s breach of the terms of this Agreement.
- Response Times. Unless otherwise expressly stated in a SOW, AVCT will respond to alerts, issues, or outages with regard to Managed Services on a “best efforts” basis and in accordance with the service levels described below. (Please note: AVCT’s response times for Managed Services are different than those for Cybersecurity-related Services. If you are receiving Cybersecurity-related services from AVCT, please see the section below—“Additional Terms Applicable to All Cybersecurity Services”).
The priority of the issue will be determined by AVCT; Client’s description of the scope and impact of the issue will be considered by AVCT in AVCT’s determination of the appropriate priority level.
- Priority 1 (P1) Emergency: An incident that affects all or most users’ ability to perform their jobs. Common examples include T1/Fiber/Ethernet circuit down; critical server, core switch or router being down; phone or voicemail outage; email not being delivered etc.
- Initial response – Within 15 minutes of when issue is reported.
- Completion time – Issue will be troubleshot until resolution is reached. Engineer will stay on issue and in touch with client until problem is resolved. (Round the Clock)
- Priority 2 (P2) Quick Response: An incident that affects a group of users or a department’s ability to perform their/its jobs. Common examples include degraded network speed, slow internet access, sporadic network connection, wireless access point down, phone or voicemail issues, or critical applications being down etc.
- Initial response – Less than 1 hour
- Completion time – 2 Business days
- Priority 3 (Normal): An incident that affects an individual user and requires assistance. Common examples include workstations performance issues, inability to print, mobile device issues, single user email problems, password resets, or individual phone issues. Operational performance of the network is not impaired and business operations remain functional.
- Initial Response – Less than 8 hours
- Completion time – 3 business days
- Priority 4 (Scheduled): An incident that indicates an individual user requires assistance, however, support to resolve the issue must be scheduled. Common examples include new workstation setups, hardware replacements/upgrades or software upgrades.
- Initial responses – Not required
- Completion Time – Next scheduled visit
- New User Setup: Setup up of a New User’s account and/or specific service. Examples include a new employee needing a phone setup, email and network credentials.
- Initial Response – not required
- Completion time – Same business day for issues submitted by 3:00pm CST, next business day for issues submitted after 3:00pm CST
ADDITIONAL TERMS APPLICABLE TO ALL CYBERSECURITY SERVICES
To the extent that the Services include cybersecurity services, the following terms shall apply:
- Anti-Virus; Anti-Malware. Our anti-virus / anti-malware solution will generally protect the managed environment from becoming infected with new viruses and malware (“Viruses”); however, Viruses that exist in the managed 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. In order to improve security awareness, you agree that AVCT 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.
- Breach/Cyber Security Incident Recovery. Unless otherwise expressly stated in a SOW, the scope of the SOW will 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.
- Penetration Testing. 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.
- Security Awareness Training. All training videos and other training materials supplied or made accessible to you are owned by the authors of those materials and are protected by copyright. You shall not copy, edit, modify, resell, sublicense, or otherwise use those materials in any manner that violates the applicable author’s copyrights or other intellectual property rights. Any training materials or training sessions made available to you are for your general informational and educational purposes only. Such information is provided on an “as is” basis, and we do not warrant or represent that the training information will cover all potential security issues, risks, or threats.
- SIEM. Any SIEM solution requires an initial assessment and analysis of the managed environment against which subsequent unusual or aberrant behavior may be measured. The initial assessment does not include (i) portable or mobile devices that are not connected to the tested environment at the time that our initial assessment is performed, (ii) systems or applications that are not physically connected to the tested environment at the time our initial assessment is performed, such as systems or applications connected by VPN or cloud-based applications, or, (iii) devices, wiring, and infrastructure-related materials that are not readily physically viewable or accessible to our technicians at the time that our initial assessment is performed.
- Cybersecurity-Related Response Times. Unless otherwise expressly stated in a SOW, AVCT will respond to alerts, issues, or outages in Cybersecurity-related Services on a “best efforts” basis and in accordance with the service levels described below. The priority of the issue will be determined by AVCT; Client’s description of the scope and impact of the issue will be considered by AVCT in AVCT’s determination of the appropriate priority level.
- Priority 1 (P1) Emergency: (Incident Severity: High, g., system-wide outage affecting all users or accounts) – Escalate this incident with associated information to Client via telephone, if no response after 1 hour, escalate according to an agreed upon escalation process. Work the incident via a ticket – including call logs, using the AVCT helpdesk.
- Initial response – Within 1 hour of when issue is reported/uncovered.
- Completion time – Issue will be troubleshot until resolution is reached. Engineer will stay on issue and in touch with client until problem is resolved. (Round the Clock)
- Root Cause Analysis – Within 24 hours of the completion of AVCT’s investigation
- Priority 2 (P2) Quick Response: (Incident Severity: Medium, g., partial service outage affecting multiple users or accounts) – Escalate this incident with associated information to Client. Provide basic incident response guidance or assist with incident response using AVCT helpdesk if the customer is a managed services client.
- Initial response – Within 12 hours
- Completion time – 2 Business days
- Priority 3 (Normal) (Incident severity: Low, g., day-to-day centric problems such as access to an individual account, password renewal, etc.) – No immediate action, this would be part of a weekly report which Client would meet with its respective lead AVCT engineer to discuss.
- Initial Response – Within 24 hours
- Completion time – 3 business days
- Priority 4 (Incident severity: Informational) – An incident that indicates an individual user requires assistance, however, support to resolve the issue must be scheduled. Common examples include new workstation setups, hardware replacements/upgrades or software upgrades.
- Initial responses – Within 48 hours
- Completion Time – Up to 4 business days
- Priority 1 (P1) Emergency: (Incident Severity: High, g., system-wide outage affecting all users or accounts) – Escalate this incident with associated information to Client via telephone, if no response after 1 hour, escalate according to an agreed upon escalation process. Work the incident via a ticket – including call logs, using the AVCT helpdesk.
Response time is calculated from the time Client dispatches a service ticket to AVCT until the time when AVCT provides a response to the ticket.
ADDITIONAL TERMS SPECIFIC TO ALL IDENTIFIED THIRD PARTY SERVICES
To the extent that identified third party services are provided to you under a SOW, the following terms shall apply:
- AVCT will enter into a contractual agreement on your behalf for the estimated fees of the services to be provided by the third party service provider.
- Once the third party services are fully delivered and installed by the third party service provider and accepted by you, your payment obligations under the applicable SOW for the third party services shall become fully fixed and non-cancelable for the entire SOW term. You agree that any issues you may have concerning delivery, installation, implementation, and the quality or fitness of any third party services will be resolved exclusively between you and the applicable third party service provider.
ADDITIONAL TERMS SPECIFIC TO EQUIPMENT/HARDWARE SUPPLIED TO YOU
To the extent that hardware or other equipment is supplied to you under a SOW, the following terms shall apply:
- Leased Equipment. Any equipment or hardware that is leased, rented, or licensed to you under a SOW is owned by AVCT or its designated third party vendor(s) or finance company (collectively, “Leased Equipment”).Issues or defects with Leased Equipment will be handled through the applicable manufacturer’s then-current warranty program.
- Events of Default. Any of the following events or conditions shall constitute a default by you (each, an “Event of Default”): (i) Your failure to pay any amounts due beyond the fifth (5th) day after such amounts are due; (ii) seizure of any or all the Leased Equipment under legal process; (iv) the filing by or against you of a petition for reorganization or liquidation under the Bankruptcy Code or any amendment thereto or under any other insolvency law providing for the relief of debtors; (v) the voluntary or involuntary making of an assignment of a substantial portion of its assets by you, or any guarantor (“Guarantor”) under any guaranty executed in connection with the Leased Equipment (“Guaranty”) for the benefit of creditors, the appointment of a receiver or trustee for you or any Guarantor, provided that in the case of all such involuntary proceedings, same are not dismissed within sixty (60) days after commencement; for any of your or Guarantor’s assets, the institution by or against you or any Guarantor of any formal or informal proceeding for dissolution, liquidation, settlement of claims against or winding up of your affairs or of any Guarantor; or, (vi) the making by you or any Guarantor of a transfer of all or a material portion of your or Guarantor’s assets or inventory not in the ordinary course of business.
- Remedies. If an Event of Default occurs, we shall have the right to exercise, at its sole discretion, any one or more of the following remedies: (i) terminate the lease; (ii) without affecting our title or right to possession of the Leased Equipment, declare due and recover all monthly lease payments and other amounts then accrued or thereafter accruing for the entire lease term or any extension thereof, which the parties agree is a fair and reasonable amount; (iii) require you to promptly redeliver the Leased Equipment, insured and with delivery pre-paid at your expense; (iv) repossess the Leased Equipment without notice, legal process, prior judicial hearing or liability for trespass or other damages (WHICH RIGHTS LESSEE HEREBY VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY WAIVES); or, (v) take possession of the Leased Equipment and sell all or any portion at public or private sale without demand or notice of intention to sell. Such repossession of the Leased Equipment shall not terminate your obligations under the lease unless we so notify you in writing. If we are unable to repossess the Leased Equipment, then it is deemed a total loss and you must pay the replacement cost as determined by us. All such remedies are cumulative and may be enforced separately or concurrently.
- Purchase Option. If no Event of Default has occurred and if the applicable SOW expressly states that you may purchase the Leased Equipment at the conclusion of the lease term, then upon the natural expiration of the applicable SOW, you shall be entitled, at your option and upon written notice to us delivered to us no less than sixty (60) days prior to the end of the applicable SOW term, to purchase the Leased Equipment for $1.00. If the Leased Equipment is purchased by you as described herein, then you understand and agree that the Leased Equipment is sold to you in an “as is” and “where is” condition without any warranty or representation by us whatsoever.
- Return of Equipment. Subject to a Purchase Option (if applicable), all Leased Equipment must be returned to AVCT within ten (10) days after the termination of an applicable SOW. Unless otherwise expressly agreed in writing by AVCT, Client will remove, package and ship back to AVCT, at Client’s expense and in a commercially reasonable manner, all Leased Equipment. If Leased Equipment is not timely returned 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.
- Hardware / Software Purchased Through AVCT. All hardware, software, peripherals, or accessories purchased through AVCT (“Third Party Products”) are generally nonrefundable once the product is obtained from AVCT’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 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 AVCT and you (including but not limited to implied warranties).