Innovative Data Processing Solutions LLC
INNOVATIVE EDGE TERMS OF SERVICE
1. Applicability
These Innovative Edge Terms of Service shall govern and apply to all services (“Services”) furnished by Innovative Data Processing Solutions LLC, a New York limited liability company (“Innovative”) to you (“Customer”) pursuant to the terms of any Innovative Edge Order Form (the “Agreement”) between Innovative and Customer for the provision of services. These Innovative Edge Terms of Service shall supplement and be deemed incorporated into each Agreement and, in the event of any conflict or inconsistency between these Innovative Edge Terms of Service and any Agreement, these Innovative Edge Terms of Service shall govern unless such Agreement expressly states an intent to the contrary.
2. AWS Services
In order to access and use certain Services which are made available by Innovative and provided by Amazon Web Services, Inc. (“AWS” and the “AWS Authorized Services”), you are required to review the information available on our website and to comply with all of the terms and conditions set forth in your service agreement with AWS, as the same may be amended from time to time. Notwithstanding any other provision of these Innovative Edge Terms of Service to the contrary, you acknowledge and agree that Innovative shall not be responsible or liable for any acts or omissions of AWS, including without limitation any restriction, limitation or termination by AWS of your rights to access and use the AWS Authorized Services.
3. AWS Resold
Notwithstanding anything to the contrary set forth in these Innovative Edge Terms of Service, any agreement between or among Innovative, Customer and AWS, and/or any applicable terms and conditions of AWS related to Customer’s use of the AWS Authorized Services, Customer acknowledges and agrees that Customer is solely responsible for any and all amounts due and owing for Customer’s use of the AWS Authorized Services, whether or not accessed through Innovative’s Cloud Management Platform (CMP), including, without limitation, Customer’s AWS spend and any balance due and owing AWS by Customer for Customer’s use of AWS products and services prior to the effective date of an Agreement. Innovative does not assume or accept, and specifically disclaims, any responsibility or liability for amounts due and owing for Customer’s use of AWS Authorized Services. If Customer fails to timely pay in full any invoice rendered by Innovative in accordance with the payment terms set forth herein, Customer acknowledges and agrees that Innovative may terminate immediately Customer’s access to Innovative’s Cloud Management Platform (CMP), notwithstanding any other agreement between or among Customer, Innovative and/or AWS, and Innovative shall have no further obligation to Customer nor shall Innovative have any liability to Customer for any damages Customer may suffer or incur as a result of termination of such access.
4. Cooperation
Customer and Innovative agree that the successful completion of Services requires their full and mutual good faith cooperation. Without limitation, Customer understands that Innovative will rely on the information furnished and to be furnished by Customer concerning its needs, existing resources and systems, and Customer agrees to make available to Innovative access to Customer’s systems and files, and the cooperation of Customer’s personnel, as Innovative may reasonably request in order to provide Services. The parties agree to work together in good faith if unforeseen circumstances or unanticipated developments occur during the pendency of any project, which unforeseen circumstances or unanticipated developments may result in a modification of scope, scheduling, pricing or acceptance criteria.
5. Payment
Customer shall pay Innovative in such amounts and at such times as set forth in the applicable Agreement. If the applicable Agreement does not set forth such payment terms, Customer shall pay Innovative pursuant to Innovative’s then current rate letter, which is available upon request. All Managed Cloud Services (MCS) invoices from Innovative must be paid within seven (7) days of the applicable invoice date. If Customer fails to pay any MCS invoice when due, Innovative may restrict, suspend, limit or terminate Customer’s use of Innovative’s services, including, without limitation, the AWS Authorized Services, immediately upon notice to Customer. Any invoice not timely paid shall bear late charges from the date of the invoice in an amount equal to the lesser of (i) 1.5% per month of the overdue amount, and (ii) the greatest amount permitted by law. Customer shall pay all sales, use, transfer and other taxes, whether federal, state or local, however designated, which are levied or imposed by reason of the transactions under the Agreement, except for income taxes on Innovative’s profits. Customer expressly authorizes Innovative to charge any credit, debit, bank or charge card provided by the Customer for any amount(s) more than 15 days past due. Customer shall reimburse Innovative for its attorney’s fees and other costs and expenses incurred to collect any past due amounts. Innovative shall apply all payments received first against any service charges, expenses (including attorney’s fees), late fees and interest charges, then to the principal amounts due starting with the oldest invoice(s). No delay on the part of Innovative in exercising any of its rights shall constitute a waiver thereof.
6. Loyalty Rewards.
Customer will be automatically enrolled in Innovative’s Edge Loyalty Program (the “Program”) upon entering into an Agreement with Innovative. Enrollment into the Program is free. Customer shall receive loyalty rewards points (“Edge Points”), to be redeemed for discounts on Innovative services, at a rate of one (1) Edge Point per one-dollar of AWS Authorized Services (excluding certain services defined below as Ineligible Services) paid pursuant to an Agreement less any credits, returns, and adjustments, as applicable; provided, however, for purposes of the Program and Customer’s accrual of Edge Points, payment for any Ineligible Services shall not accrue or earn any Edge Points. “Ineligible Services” shall be defined as the following: AWS Managed Services, AWS Marketplace Transactions, Reserved Instances, Savings Plans, AWS Chime, AWS Chime Voice Connector, AS Connect, AWS Connect Voice ID, AWS GameLift, AWS Monitron, AWS Workspaces Application Manager, AWS Workspaces Application Manager Licensing for 3rd Party Applications, AWS GroundStation, and any service using AWS hardware not located in a location of General Availability for the service.
Edge Points are non-transferable, have no cash value, are not legal tender, and do not give rise to any property or other interest whatsoever. Innovative has sole discretion to modify, add, or delete all or any portion of the Program rules, terms, conditions, benefits, at any time, with or without notice, even though such changes may affect the value of points already accumulated, the value of the rewards and/or the time of redemption. Innovative may also terminate any Customer’s Edge Point totals, or declare any rewards forfeited, for violation of these Innovative Edge Terms of Service, attempted fraudulent activity, commercial or resale activity, or any other reason deemed justified in Innovative’s sole discretion. Edge Points earned may not be combined with Edge Points earned by any other Customer. Customer may review its Edge Point balance by calling Innovative at the phone number listed below. Customer is responsible for any tax liability that may result from participation in the Program or redemption of Edge Points. Customer should consult its tax advisor concerning such tax consequences.
7. Experience Sessions.
Customers may have access to periodic curated virtual webinars, discussions, and labs centered around emerging or innovative AWS technologies, delivered by Innovative Solutions Architects or approved partners (“Experience Sessions”). In the event Innovative holds an Experience Session, Customer may register an unlimited number of its employees (each an “Attendee”) for such Experience Session. In its sole discretion, Innovative reserves the right to refuse admittance to or expel from an Experience Session anyone that it determined to be behaving in a manner that could be disruptive to the Experience Session or any other attendee. Innovative may at any time, with or without giving notice, in its absolute discretion and without giving any reason, change, cancel or postpone the Experience Session, change its venue or any of the other published particulars, or withdraw any invitation to attend.
Attendees are responsible for any technical requirements needed to access any offered Experience Session. Innovative may provide Attendees with login credentials for, or a link to access, an Experience Session, which any such credentials or link are to remain confidential. Any such credentials may not be given or transferred to any third party who is not an employee of Customer without Innovative’s prior written consent. Any posts, messages or other information Attendee supplies or submits during an Experience Session will be considered non-confidential and Attendee hereby consents to and authorizes Innovative to use, copy or distribute and disclose any such post, message or information to third parties. Innovative reserves the right to edit or remove any post inside of an Experience Session. Attendees agree to comply with all reasonable instructions issued by Innovative to participate in an Experience Session.
8. Termination
Either party may terminate an Agreement for any reason upon 15 days’ written notice to the other party. Innovative reserves the right to, and Customer agrees that Innovative may, cancel any Agreement and terminate any Services immediately, and without prior notice, in the event that Customer fails to fulfill any material obligation contained in these Innovative Edge Terms of Service or in any other Agreement. After termination by either party for any reason, Innovative shall retain the right to recover all accrued charges due and owing by Customer to Innovative through the effective date of termination, and Customer agrees that it waives any right it may have against Innovative to offset fees payable by Customer to Innovative.
9. Warranties; Disclaimers; Limitation of Liability
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN ANY AGREEMENT, INNOVATIVE DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES IN CONNECTION WITH THE SERVICES AND AWS AUTHORIZED SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
INNOVATIVE SHALL HAVE NO LIABILITY WITH RESPECT TO THE SERVICES OR AWS AUTHORIZED SERVICES OR ANY OTHER OBLIGATION UNDER ANY AGREEMENT OR OTHERWISE FOR LOST PROFITS OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF INNOVATIVE TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO INNOVATIVE BY CUSTOMER WITHIN THE IMMEDIATELY PRECEDING 6-MONTH PERIOD.
10. Confidentiality
To the extent that confidential and proprietary information of a party (“Confidential Information”) is exchanged or received in connection with the provision of Services, the receiving party agrees to maintain the confidential nature of the Confidential Information of the disclosing party in its possession by taking commercially reasonable steps to protect such Confidential Information from unauthorized use, access and disclosure; such steps shall be at least equal to those taken by the receiving party to protect its own Confidential Information. Confidential Information does not include: (i) information that was publicly available at the time of disclosure or that becomes publicly available other than by a breach of this provision by the receiving party; (ii) information previously known by or developed by or for the receiving party without use of or access to the Confidential Information of the disclosing party; or (iii) information that the receiving party rightfully obtains without restrictions on use and disclosure. The receiving party may disclose the Confidential Information of the disclosing party to its, or its Affiliates’, employees and AWS provided that such party has a need to know and is required to maintain the confidentiality of such information on terms no less stringent than those contained herein.
11. Data Privacy
Customer acknowledges and agrees that, during the course of its provision of Services, Innovative may have access or be privy to certain private or confidential information that is protected by various federal, state and/or local laws (“Privacy Laws”), which may require that Customer provide notice to and/or receive express authorization, consent or permission from, in writing or otherwise, those individuals to whom the information pertains (“Protected Individuals”). Customer acknowledges and agrees, and represents and warrants, that it will obtain all notices, consents, authorizations and permission from each and all Protected Individuals, as required by applicable Privacy Laws and shall provide full and true copies of such documentation to Innovative upon its request.
As further consideration for Innovative’s provision of Services, Customer agrees to indemnify, defend and hold harmless Innovative, its affiliates, and their respective officers, shareholders, directors, employees, representatives and agents (collectively, “Innovative Indemnified Parties”), from and against any and all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, costs and expenses (including attorneys’ and accountants’ fees and disbursements) (“Claims”), incurred by, borne by or asserted against any of the Innovative Indemnified Parties to the extent such Claims relate to, arise out of or result from the Customer’s failure to comply with all applicable Privacy Laws, including without limitation Customer’s failure to obtain any and all required notices, consents, authorizations or permission from any Protected Individuals.
In the event of a transfer of “personal data” as defined by the European Union General Data Protection Regulation (Regulation (EU) 2016/679), together with any additional implementing legislation, rules or regulations that are issued by applicable supervisory authorities, from the European Economic Area (“EEA”) to a country outside of the EEA from Customer to Innovative, for technical support or other purposes, Customer and Innovative simultaneously shall automatically enter, without further action, into the data processing agreement, including the standard contractual clauses included therein, available HERE, the terms of which are hereby incorporated in their entirety into this Agreement by reference.
12. Innovative Personnel
Customer recognizes that the employees and independent contractors of Innovative, and such persons’ loyalty and service to Innovative, constitute a valuable asset of Innovative. Accordingly, Customer agrees not to make any offer of employment to, nor to employ or enter into a consulting relationship with, or otherwise retain, any such person whom or which provided services to Customer on behalf of Innovative, within two (2) years of the last date on which such services were provided. If Customer breaches this Section 12, Customer shall pay to Innovative, as liquidated damages and not as a penalty, an amount equal to the greater of (i) two (2) times the aggregate compensation paid to such party by Innovative during the twelve (12) month period immediately preceding the breach, and (ii) two (2) times the annual compensation offered to such party by Customer (the “Liquidated Damages”). Customer acknowledges and agrees that the harm caused by Customer’s breach of this Section 12 would be impossible or very difficult to accurately estimate as of the effective date of any such breach, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from Customer’s breach. As between Customer and Innovative, Customer’s payment of the Liquidated Damages is Customer’s sole liability and entire obligation and Innovative’s exclusive remedy for any breach by Customer of this Section 12.
13. Indemnity
Customer agrees to indemnify, defend and hold harmless the Innovative Indemnified Parties from and against any and all Claims Innovative incurs or sustains as a resulting from or in connection (a) breach by Customer of any of its obligations under the Agreement or hereunder, including, without limitation, Customer’s failure to pay timely and fully all amounts due and owing for Customer’s use of the AWS Authorized Services, or (b) violation by Customer of any applicable law, rule or regulation.
14. Delays or Defaults
Innovative shall not be liable for delays or defaults in furnishing Services hereunder, if such delays or defaults on the part of Innovative are due to any cause, event or circumstance beyond Innovative’s reasonable control, including without limitation as a result of Acts of God or of a public enemy, acts of the United States or any state or political subdivision thereof, fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes, embargoes, epidemics or quarantine restrictions, shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind, delays of supplier or delay of transportation for any reason, breakdown or failure of machinery or equipment, or Customer’s delay in reporting problems or furnishing information or materials. Acceptance of delivery of Services shall constitute a waiver and release of Innovative by Customer for any claim for damages, setoff, discount or other liability on account of delay.
15. Relationship of the Parties
Innovative has at all times been, and shall at all times be and be deemed to be, an independent contractor of Customer. Neither Innovative nor any of its personnel shall be deemed an employee of Customer for any purpose whatsoever or entitled to any benefits provided to Customer’s employees. Nothing contained within these Innovative Edge Terms of Service shall be construed to render Innovative or any Innovative’s personnel as a partner or agent of, or joint venturer with, Customer for any purpose. Neither Innovative nor any of its personnel shall, under any circumstances, have any authority to act for or to bind Customer or to sign the name of Customer or to otherwise represent that Customer is in any way responsible for Customer’s acts or omissions. It is anticipated that Innovative and Innovative’s staff will perform services in various capacities for third parties other than Customer during the term of these Innovative Edge Terms of Service.
16. General
Any notices or communications to be delivered to Innovative must be in writing and delivered to Innovative’s corporate office. Any notices or communications to be delivered to Customer will be delivered to the address set forth on the applicable Agreement or as otherwise provided by Customer. All notices shall be deemed effective upon receipt by the recipient.
These Innovative Edge Terms of Service, together with the applicable Agreement, constitute the entire agreement between Innovative and Customer regarding the services and/or products described in such Agreement. Customer may not assign its rights and obligations under an Agreement without the prior written consent of Innovative and any attempted assignment without such consent shall be null and void.
The failure or delay by Innovative to exercise or enforce any right or provision of these Innovative Edge Terms of Service shall not constitute a waiver of such right or provision. Any provision of these Innovative Edge Terms of Service that is invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof.
These Innovative Edge Terms of Service shall be interpreted, construed, governed by and enforced in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof. Any dispute, controversy or claim arising out of or relating to an Agreement or these Innovative Edge Terms of Service shall be brought exclusively in Monroe County, New York State and Customer hereby agrees to submit to the jurisdiction of such courts. The prevailing party in any such action shall be entitled to reimbursement by the other party for any and all legal costs, including without limitation attorneys’ fees, reasonably incurred by the prevailing party in enforcing its rights under these Innovative Edge Terms of Service. All rights and remedies of the parties herein are in addition to, and shall not exclude, any rights or remedies that either party may have under applicable law.
Contact Information
If users have any questions or suggestions regarding these Innovative Edge Terms of Service, please contact us at:
Phone: (585) 292-5070
Fax: (585) 292-1912
Mailing Address: 4545 East River Road, Suite 100, West Henrietta, NY 14586