Datapath Terms of Services
(Last Updated: June 24, 2022)
The following terms and conditions (“Agreement”) apply to the services and deliverables (Collectively, “Services”) provided by Data Path, Inc., Data Path Fresno, LLC, Data Path Ohio, LLC and subsidiary companies (“We”, “Our”, “Datapath”). Procurement of, use of, or access to the Services is subject to Your, and the entity you represent, (Together, “You”, “Your”, “Customer”) Agreement to all of the terms and conditions of this Agreement.
1. SERVICES.
We will provide you with the Services set forth on an order form, quote, proposal, and/or statement of work executed by the parties (each an “Order Document”). “Services” may include, without limitation, professional services, resale of product and any of our managed IT services and security monitoring services.
2. OUR PERSONNEL.
2.1 Point of Contact. With each Order Document We will provide You with a point of contact to you for all matter relating to the relevant Services. Your point of contact may change but you will be given Notice prior to the change.
2.2 Qualified Professionals. We will perform the Services for you with qualified, skilled and experienced IT professionals. If you, in your reasonable judgement, determine that personnel assigned to perform the Services for you are unfit, we will in good faith create alternative options, and we will replace personnel as reasonably necessary. You acknowledge that any replacement of personnel may cause delay in the performance of the Services and that we are not liable or responsible for any such delay.
2.3 Use of Subcontractors. We reserve the right to use subcontractors as needed. Our subcontractors will comply with this Agreement. We are fully liable for any of our subcontractor’s breach of this Agreement. As requested, we will provide you with the information of the subcontractors we are using to fulfill your Services (we use subcontractors for supporting services, such as low voltage and fiber construction, and forensic cyber security services).
2.4 Your Cooperation. You acknowledge that your timely provision of (and our access to) your facilities, equipment, assistance, cooperation, and complete and accurate information and data from your officers, agents and employees (“Cooperation”) is essential to the performance of the Services and the provision of support, and that we shall not be liable for any deficiency in performing the Services if such deficiency results from your failure to provide full Cooperation as required hereunder. Cooperation includes, but is not limited to, designating a point of contact to interface with us during the course of the Services, allocating and engaging additional resources as may be required to assist our Personnel in performing the Services.
2.5 Safe Environment. You must provide a suitable and safe work environment for our employees and subcontractors while our personnel are on your premises.
2.6 Waivers. Except as set forth in an Order Document, our personnel shall not be required to sign any waivers, releases or other documents to gain access to your premises in connection with the performance of the Services, and any such waivers, releases or other documents shall be invalid and shall have no effect even if executed.
3. SECURITY AND COMPLIANCE.
3.1 Our Security Practices. We staff security professionals and follow an enterprise security platform (NIST). We have security policies and procedures and a security agreement that outlines the safeguards we have in place and the security requirements we have for third parties.
3.2 Background Checks. All of our personnel must complete a background check prior to providing the Services. We follow the background guidelines set forth by the DOJ (California Department of Justice) and the FBI (Federal Bureau of Investigation).
4. DELIVERABLES; CUSTOMER DATA.
Any deliverables we provide are supplied solely for your internal use, during the term of this Agreement, for the purposes for which they are provided. Deliverables will not be disclosed to third parties. No intellectual property rights are assigned or transferred by us in connection herewith. Any data provided by you to us is non-exclusively licensed to us solely as necessary to help perform the Services for you. We will use reasonable, industry standard practices to help secure all your data from unauthorized access or loss. Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each party retains all right, title and interest in and to their respective technologies and other intellectual property rights.
5. PAYMENTS.
5.1 Fees and Expenses.
In consideration of the Services, you shall pay to us the fees set forth in each Order Document in accordance with the terms and conditions set forth therein. Fees charged under an Order Document may be increased by us on thirty (30) days prior notice – and such new fees will go into effect beginning with the next Term Period (as defined in Section 6 below). Notwithstanding such notice, fees will automatically increase annually by 3% over the immediately preceding contract year. You will be responsible for our expenses, and third-party costs, to the extent set forth in an Order Document.
5.2 Payment Terms.
Unless otherwise specified in an Order Document, all amounts payable by you hereunder shall be due and payable within (i) for services, fifteen (15) days of the date of such invoice and (ii) for products, due upon receipt of the date of such invoice and (iii) for projects, fifteen (15) days of the date of such invoice for the initial one-third of the project and for remaining service invoices. If you dispute an invoice in good faith, it may withhold the disputed portion but shall pay the undisputed portion. No interest shall be incurred on any unpaid or adjusted invoice unless it is determined that we are due all or a portion of the disputed amount. Interest shall be charged at a rate of one and on-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less), on all amounts that were disputed and not paid, but were due to us.
6. TERM; TERMINATION.
6.1 Term.
This Agreement shall commence on the Effective Date and continue until terminated as set forth in the Order Document. Each Order Document will have the term set forth thereon (“Initial Term Period”) and will automatically renew for consecutive terms of equal length to the Initial Term Period (“Renewal Term Periods”), unless either party provides the other party with notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Together, the Initial Term Period and Renewal Term Period, are referred to as the “Term Period”. Customer is subject to early termination fees for the remaining value on the Order Document(s) if agreement is terminated before the agreement end date.
6.2 Termination.
Either party may terminate this Agreement on sixty (60) days’ notice if there are no Order Documents in effect. In addition, in the event that either party shall fail to perform its obligations pursuant to this Agreement and such failure shall continue for a period of sixty (60) days (ten (10) days in the case of non-payment) following written notice from the other party, (sufficiently detailing the breach and stating the intent to terminate), this Agreement may be terminated by the non-breaching party by giving a notice of termination to the other party. Notices of breach for non-payment may be provided via email.
6.3 Effect of Termination.
Termination of this Agreement will terminate all Order Documents. The provisions of Sections 5 (with respect to any outstanding payment obligations), 6.3, 7 , 8, 9, 10 (for the period of time set forth therein), and 11, as well as all use restrictions, shall survive termination.
7. WARRANTY; DISCLAIMER
7.1 Warranties.
We represent and warrant that (i) We have all right, power and authority to execute this Agreement and perform its obligations hereunder, (ii) the Services will be performed in a professional manner and materially comply with any specifications agreed to by the parties in writing and consistent with industry standards, (iii) this warranty will be in effect for a period of thirty (30) days from the completion of any Services, (iv) Datapath will reasonably work with and assist Customer in enforcing any manufacturer warranties with respect to the equipment being sold to Customer under this Agreement, (v) the Services will comply with all laws and regulations, and (vi) the Services will not infringe any third-party intellectual property rights. In the event of a breach of Section 7.1(ii), your sole remedy will be for us to use commercially reasonable efforts to promptly correct the applicable issue. Sections 7.1(iii) and (iv) will not apply to the extent any breach thereof is caused by you or any of its information, data, or instructions. In the event any Services are delayed due to reasons caused in whole or part by you, our performance will be equitable tolled for a reasonable period of time.
7.2 Disclaimer.
Except as set forth in section 7.1, we make no warranties, either express or implied, as to any other matter whatsoever, including, without limitation, the condition of the services or any deliverables provided hereunder, and we hereby expressly disclaim any implied warranties of merchantability, fitness for any particular purpose or need, accuracy, non-infringement of third party rights and title, and any warranties that may arise from course of dealing, course of performance or usage of trade.
8. LIMITATION OF LIABILITY
Neither party shall be liable in connection with this agreement for any (i) incidental, special, or consequential damages, even if foreseeable or (ii) amounts in the aggregate in excess of the fees paid by you to us during the twelve (12) month period prior to the date the cause of action accrues.
Except for actions for nonpayment, no action, regardless of form, arising out of this agreement may be brought by either party more than one (1) year after the cause of action has accrued.
Notwithstanding anything to the contrary, the foregoing limitations of liability for each party shall not apply in the event of gross negligence or willful misconduct.
9. CONFIDENTIALITY.
9.1 Confidential Information.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). For purposes of this Agreement, “Confidential Information” of a party means information, ideas, materials or other subject matter of such party, whether disclosed orally, in writing or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of this Agreement; all business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines; and all personnel, customer, contracts and financial information or materials disclosed or otherwise provided by such party (“Disclosing Party”) to the other party (“Receiving Party”). All pricing information, and information regarding performance of the Services (even if first generated by you) is our confidential information. Confidential Information does not include that which (a) is already in the Receiving Party’s possession at the time of disclosure to the Receiving Party, (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (c) is obtained by the Receiving Party from an unrelated third party without a duty of confidentiality, or (d) is independently developed by the Receiving Party. Without limiting the generality of, and notwithstanding the exclusions described in, the foregoing, (i) our Confidential Information includes all Deliverables, including any portion thereof (in both object code and source code form), modifications and derivatives thereof, and information or materials derived therefrom, whether or not marked as such, and (ii) Confidential Information of both parties includes the terms and pricing under this Agreement.
9.2 Restrictions on Use.
The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than in furtherance of this Agreement and the activities described herein. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to nonuse and nondisclosure) no less restrictive than those required by the Receiving Party for its own Confidential Information. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each party shall advise the other party in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.
9.3 Exclusions.
Notwithstanding the foregoing, this Agreement shall not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (and shall cooperate with the Disclosing Party) to contest or minimize the scope of the disclosure (including application for a protective order). Further, each party may disclose the terms and conditions of this Agreement: (a) as required by the applicable securities laws, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources and their advisors; and (d) in connection with the enforcement of this Agreement or any rights hereunder.
9.4 Equitable Relief.
Each party (as Receiving Party) acknowledges that the Disclosing Party considers its Confidential Information to contain trade secrets of the Disclosing Party and that any unauthorized use or disclosure of such information would cause the Disclosing Party irreparable harm for which its remedies at law would be inadequate. Accordingly, each party (as Receiving Party) acknowledges and agrees that the Disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the Receiving Party’s obligations hereunder with respect to the Confidential Information of the Disclosing Party, and such further relief as any court of competent jurisdiction may deem just and proper.
9.5 Return of Materials.
Upon termination of this Agreement, each party (as Receiving Party) will immediately return to the Disclosing Party all Confidential Information of the Disclosing Party embodied in tangible (including electronic) form or, at the Disclosing Party’s discretion, destroy all such Confidential Information and certify in writing to the Disclosing Party that all such Confidential Information has been destroyed.
10. NON-SOLICITATION
During the course of this Agreement and for twelve (12) months thereafter, you will not solicit for hiring or other engagement any of our personnel. In the event that within such period you hire or engage (whether as an employee, independent contractor or otherwise) any of our personnel, you agree that we will be damaged. Accordingly, you agree that for each of our personnel hired by you, you will pay us 50% of the individual’s present, Datapath annual salary (plus bonuses – as if earned in full by the individual) as compensation. The payment to is due within five (5) days from the date such person leaves Datapath.
11. GENERAL.
11.1 Assignment.
Unless otherwise agreed in writing, neither this Agreement and associated documents nor any of the rights or obligations hereunder may be assigned, delegated or otherwise transferred by Customer without the prior written consent of Datapath. Services are for the Customer’s internal use only and may not be transferred or assigned to third parties without Datapath’s prior written consent, and any transfer or assignment to the contrary is void. Datapath will not deny any reasonable request for Customer’s transfer or assignment upon satisfactory credit and documentation approval for Customer’s proposed assignee. Under no circumstances shall Customer resell or redistribute the Services or products provided under this. Customer acknowledges and agrees that Datapath may transfer or assign or collaterally assign, in whole or in part, its rights, interests and obligations hereunder without limitation to any of its affiliates, any party providing financing to Datapath (“Financing Party”) and any successor or assign of Datapath or such Financing Party without the consent of Customer; provided, however, that Datapath or its successors shall remain obligated to Customer under this Agreement. Customer agrees that any Financing Party holding a security interest shall not be prevented or impeded by Customer from enforcing such security interest, and as long as Datapath is performing its obligations hereunder, such action by a Financing Party shall not affect Customer’s obligations under this Agreement. Customer shall execute all consents to assignment and/or acknowledgements of any security interest as are requested by Datapath to give effect to the foregoing.
11.2 Severability.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
11.3 Disputes; Jurisdiction and Venue.
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) in accordance with such Rules. To the extent the JAMS Streamlined Arbitration Rules & Procedures are available, they will be used. The arbitration shall take place in Modesto, California, in the English language and the arbitral decision may be enforced in any court. Subject to the foregoing arbitration provision, all disputes arising in connection herewith will be subject to the sole and exclusive jurisdiction and venue of the state and Federal courts located in Modesto, California (and the parties each hereby consent and submit to such jurisdiction and venue). In the event we are required to provide assistance in any dispute you have with any third party (such as witness testimony), (i) you will compensate us at our then-current hourly rates, (ii) you will be responsible for any of our legal fees incurred.
11.4 Notice.
Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to you, the address listed by you on an Order Document or otherwise during the Services sign-up process (or as otherwise later changed by you on written notice to us – email is sufficient) and (2) if to us: 1415 J Street, Modesto, CA 95354 Attn: Legal (or at such other address as may be given by us at any time) - and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to us (such as for breach) must also be provided in email to: contracts@mydatapath.com (subject heading: Attn: Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence). Notwithstanding the foregoing, electronic notice to you is sufficient to the extent expressly stated in this Agreement.
11.5 Amendments; Waivers.
We may supplement, amend or otherwise modify this Agreement at any time by providing you with at least thirty (30) days’ notice thereof (electronic notice is sufficient) and such changes will go into effect at the beginning of the next Term Period. Except as set forth in the preceding sentence, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
11.6 Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed electronically (such as via DocuSign) and in counterparts, which taken together shall form one legal instrument.
11.7 Force Majeure.
Except for your payment obligations, neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party (“Force Majeure Event”) such as, acts of God, acts of war or terrorism, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.
11.8 Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.