Innovative Data Processing Solutions LLC
MCS TERMS AND CONDITIONS
1. Applicability
These MCS Terms and Conditions shall govern and apply to the Managed Cloud Services (MCS) and resale of AWS services furnished by Innovative Data Processing Solutions LLC (“Innovative”) to you (“Customer”) pursuant to (i) the terms of any written request by Customer that is accepted by Innovative, or (ii) any order form, service level agreement, statement of work, proposal, quote, purchase order or other written agreement (“Agreement”) between Innovative and Customer for the provision of products or services. These MCS Terms and Conditions shall supplement and be deemed incorporated into each Agreement and, in the event of any conflict or inconsistency between these MCS Terms and Conditions and any Agreement, these MCS Terms and Conditions shall govern unless such Agreement expressly states an intent to the contrary.
2. Deliverables
All software and software development, databases, database content, designs, updates, enhancements, patches, bug-fixes and related goods which are provided to the Customer under any Agreement or are generated from or by any of the goods provided under any Agreement, are referred to as the “Software” (when referring to software and databases which are the product of Innovative’s work or which are supplied by Innovative, and all related documentation). All systems design, support, maintenance, consulting and other services performed for or provided to the Customer by Innovative or its agents or representatives under any Agreement are referred to as the “Services”. Any computer and peripheral equipment, and other tangible property provided to the Customer under any Agreement, are referred to as the “Hardware.”
3. Concerning Software
Innovative will provide the Services using one or a combination of original and proprietary computer programs owned by Innovative (“Innovative Software”); methods, components; generic routines and subroutines, web services, generic modules and sub-modules, generic libraries, generic quality processes and generic testing procedures used in connection with or incorporated into the Services and code previously developed by Innovative (“Generic and Pre-existing Software”) and third party software which Innovative is authorized to provide (“Third Party Software”). Innovative is and shall remain the owner of the Innovative Software, Generic and Pre-existing Software, and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Innovative hereby grants to Customer a royalty-free, non-exclusive and transferable license (the “License”) to use the Innovative Software and Generic and Pre-existing Software. However, all contrary provisions notwithstanding Innovative shall not in any event be prohibited from independently developing any software with the same or similar functionality, and shall have the absolute right to exploit any general knowledge or experience it obtains in connection with the Agreement.
4. 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 Terms and Conditions, 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 Authorized Services.
5. AWS Resold
Notwithstanding any terms and conditions set forth in Innovative Solutions’ MCS Terms and Conditions, any agreement between or among Innovative Solutions, Customer and AWS, and/or any applicable terms and conditions of AWS related to Customer’s use of its products and services, Customer acknowledges and agrees that Customer is solely responsible for any and all amounts due and owing for Customer’s use of AWS products and services, whether or not accessed through Innovative Solutions’ 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 consent to assign documentation establishing Innovative as the AWS reseller for Customer. Innovative does not assume or accept any responsibility or liability for amounts due and owing for Customer’s use of AWS products and services. Customer agrees to indemnify, defend and hold harmless Innovative from and against any and all claims, actions, damages, liabilities, costs, expenses (including attorney fees, court costs and amounts paid in settlement), penalties, interest, fines or other amounts incurred by Innovative as a result of Customer’s failure to pay timely and fully all amounts due and owing for Customer’s use of AWS products and services, including without limitation reimbursement of any amounts paid by Innovative to AWS. If Customer fails to timely pay in full any invoice rendered by Innovative Solutions in accordance with the payment terms set forth herein, Customer acknowledges and agrees that Innovative may terminate immediately Customer’s access to all AWS services and Innovative Solutions’ 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. Continued non-payment will result in permanent removal of all AWS resources to prevent the ongoing accrual of new charges.
6. Manage Cloud Service Description
For a Customer with an associated Order Form, Customer receives the following MCS Services:
- Account Management – a named Technical Account Manager (TAM) acts as a single point of contact between Customer and Innovative.
- Monitoring and Alerting – a customized runbook, uptime alerts, service alerts, and billing alerts. Note that the setup and configuration of the runbook and these alerts consumes MCS Time.
- Reporting – monthly management reporting provided by a TAM.
- Cloud Management Platform – as described in Section 7.
- Infrastructure Monitoring and Observability – as described in Section 8.
- Technical Capacity and Cloud Support – 1 hour per month plus the MCS Time specified on an Order Form for the In-Scope Services described in Section 9, excluding any Out-Of-Scope Services described in Section 10.
- Service Level Agreement – Innovative provides technical capacity and cloud support on business days from 8am to 8pm eastern time for some values of Issue Severity, and 24/7/365 for other values of Issue Severity, as described in Section 11. In addition, Emergency Cloud Engineering Time may be purchased separately, as described on an Order Form.
- SaveShare – as described in Section 12
7. Cloud Management Platform
Customer has access to a Cloud Management Platform (CMP) as part of the MCS Services. Customer is responsible for any associated AWS expenses or technical requirements as needed for the CMP to function. Innovative will provide Customer with login credentials and training on CMP, up to the limits of MCS Time purchased on an Order Form. CMP credentials may not be given or transferred to any third-party company, nor any individual not employed in a full-time capacity by Customer, without Innovative’s prior written consent. Customer agrees to comply with all reasonable instructions issued by Innovative when using the CMP. For a full list of features and use cases, please see MontyCloud’s website and the table below.
| CMP Feature | Feature Description |
| Cloud Enablement & Governance | Establish a Cloud Center of Excellence quickly by providing secure cloud project workspaces and sandbox environments for users to access cloud services securely.
Implement autonomous governance with invisible guardrails to deliver better cloud security, compliance, cost optimization, and adherence to well-architected best practices. Set up well-governed cloud environments with self-service automations and managing access to approved cloud services with built-in preventive and detective guardrails. |
| Cost, Savings, and Compliance Visibility & Control | Gain comprehensive oversight across your cloud infrastructure and services, obtaining insights into resource usage, performance, and cost to make data-driven decisions.
This feature ensures the maintenance of visibility into cloud resource inventory, and the cost of specific environments and projects, while also providing project-centric visibility into security and compliance best practices & violations. Create custom reports on-demand or schedule delivery to share with stakeholders, maintaining full control over access, security, and compliance. |
| Automated Operations | Leverage the power of intelligent automation to streamline routine tasks, optimize resource allocation, and enhance security posture. This feature drives efficiency, reduces operational costs, and enables your teams to focus on innovation and delivering business value.
MontyCloud includes automating routine operations such as starting/stopping Virtual Machines, snapshot creation, etc., monitoring and alerting for budget thresholds and spend anomalies, and reducing the operations burden with intelligent cloud rules and remediation playbooks. |
8. Infrastructure Monitoring and Observability
Customer has access to an Application Performance Management (APM) and Observability platform, configured by Innovative staff. Customer is responsible for any associated AWS expenses or technical requirements as needed for the APM to function. Innovative will provide Customer with login credentials and training on APM, up to the limits of MCS Time purchased on an Order Form. APM credentials may not be given or transferred to any third-party company, nor any individual not employed in a full-time capacity by Customer, without Innovative’s prior written consent. Customer agrees to comply with all reasonable instructions issued by Innovative when administrating APM service. Additional APM licenses may be required, at Customer’s expense, to enable specific features or workload coverage, and Customer may choose to order such additional licenses through the TAM. At this time, Innovative provides IBM Instana as the APM included with the MCS Services. For a full list of features and use cases please see IBM Instana Observability and the table below.
| Feature | Description | Reference |
| API Monitoring | Instana API Monitoring service ensures the availability, reliability, and performance of APIs for a seamless digital experience through end-to-end monitoring, real-time visibility, and proactive issue identification and resolution. | API Monitoring – IBM Instana Observability |
| APM Monitoring | Instana Application Performance Monitoring (APM) service is a cloud-native solution that offers automated, contextualized visibility into application health and availability. It supports modern application stacks, including cloud-native apps, containers, and microservices, and provides essential capabilities for diagnosing issues, reducing response times, optimizing performance, and supporting CI/CD pipelines. The service’s automatic incident detection and integration with other monitoring tools streamline root cause investigation and provide a comprehensive view of application performance. | Application Performance Monitoring | IBM |
| Container Monitoring | Instana Container Monitoring service offers automatic visibility into all technical layers of containerized environments, including hosts, containers, middleware, and microservices. It provides continuous discovery of containers and their internal technologies, deploys monitoring sensors, traces application requests, and establishes container metrics. The service also visualizes relationships and dependencies between containers, data sources, and application components, enabling comprehensive observability for maintaining application health and maximizing efficiency in containerized applications. | Container Monitoring – IBM Instana Observability |
| Database Monitoring | Instana Database Monitoring service proactively detects and resolves database performance issues, optimizing performance by using key metrics to identify and address bottlenecks such as costly or slow queries. The service continuously discovers all databases, deploys monitoring sensors, traces each request, and visualizes the relationships and dependencies between all application components, providing full observability and preventing performance issues or outages before they impact end users | Database Monitoring – IBM Instana Observability | IBM |
| Infrastructure Monitoring | Instana Infrastructure Monitoring service provides AI-powered automated monitoring, alerting, and remediation capabilities for real-time visibility into complex, distributed applications and infrastructure components, including servers, containers, and databases. This service ensures reliable, secure, and efficient operations by offering unparalleled insights, preventing downtime, optimizing resource utilization, and enhancing user productivity and experience | Infrastructure Monitoring – IBM Instana Observability | IBM |
9. In-Scope Services
Customer has access to certain technical capabilities as part of the MCS Services, where such technical capabilities are categorized as AWS Cloud Engineering, AWS FinOps, or AWS DevOps services, as defined in the table below (the “In-Scope Services”.) The In-Scope Services are available up to the limits of MCS Time as specified on an Order Form.
The In-Scope Services are:
| In-Scope Service Category | In-Scope Service |
| AWS Cloud Engineering | · Infrastructure, Security, and Compliance Monitoring: Includes cert monitoring, logging, user audits, key rotation, and security reviews.
· Application and Infrastructure Logging and Monitoring: Focuses on performance metrics of EC2 and other AWS services, along with setting alarms and enabling various logs. · Backups and Recovery: Manages backup and restore plans for AWS compute, Database, and storage. · Networking Consulting and Support: Offers network troubleshooting, security group management, IP allocation, routing, VPC Flow Logs, and Load Balancer configurations. · Storage Consulting and Support: Involves capacity monitoring and management for EBS, S3, FSx, including EBS volume management. · Compute Consulting and Support: Provides guidance on instance types and sizes and supports instance creation and modification. |
| AWS FinOps
|
· Cost Reporting and Analysis: Delivers insights and recommendations on Reserved Instances and Savings Plans, identifies Unused Resources like EBS Volumes and stopped instances, and manages Lifecycle for S3 and EBS to maximize savings.
· Cost Optimization and Rightsizing: Provides recommendations on Reserved Instances and Savings Plans, and offers strategies for Instance Rightsizing to enhance cost efficiency. |
| AWS DevOps | · IaC Infrastructure: Automation of infrastructure provisioning and management using code for consistency and speed.
· CI/CD Pipelines and Deployments: Streamlined and automated code integration and deployment processes for increased reliability. · Container Automation and Scaling: Advanced management of container deployment and scaling for optimized application delivery. · Troubleshooting infrastructure impact on application performance. |
10. Out-Of-Scope Services
Customer will not have access to any services that are not In-Scope Services, and such services are not available as part of the MCS Services (“Out-Of-Scope Services.”) If Customer requests an Out-Of-Scope Service, Innovative will provide a custom Statement of Work and estimate for such services. Innovative may validate any Customer requests and determine, in its sole discretion, if any such request is considered an Out-Of-Scope Service.
Out-Of-Scope Services are, but are not limited to, the following examples:
| Out-Of-Scope Service Category | Out-Of-Scope Service Example |
| Application Development and Application Changes | Web Applications: This includes the design, coding, testing, and deployment of new web applications. It also covers updates to existing web applications, such as adding new features, fixing bugs, or making changes to the user interface. This could also extend to the management of web servers and the implementation of security measures for web applications.
Mobile Applications: This involves the creation and updates of applications specifically designed for mobile devices. This could include the development of native apps for specific platforms (like iOS or Android), or the creation of cross-platform apps. Updates could involve adding new features, improving performance, or fixing bugs. Desktop Applications: This includes the development and updates of applications designed to be installed and run on desktop computers. This could involve creating new applications, updating existing ones, or porting applications to new platforms.
Application Installation: This includes the process of deploying applications on AWS servers. It involves tasks such as setting up the server environment, configuring the application to run on the server, and troubleshooting any issues that arise during the installation process. Application Administration: This involves the ongoing management of applications running on AWS servers. Tasks could include monitoring application performance, managing user access, updating the application as needed, and troubleshooting any issues that arise. |
| Database Management and Database Changes | Database Design: This involves the creation of new databases, including defining the structure of the data, setting up relationships between data elements, and implementing security measures.
Database Administration: This includes tasks like monitoring database performance, managing database access, backing up and restoring data, and troubleshooting database issues.
Database Updates and Upgrades: This involves making changes to existing databases, such as adding or modifying tables, changing data relationships, upgrading database releases, or updating stored procedures. It could also involve migrating data to a new database or platform.
Database Optimization: This includes tasks like tuning database performance, optimizing queries, and managing database resources. |
11. Service Level Agreement (SLA)
Innovative shall provide the MCS Services during its Regular Business Hours, which are 8am to 8pm eastern time on weekdays in which Innovative is open for business, and during its Emergency Business Hours, which are from 12:00am to 11:59pm eastern time on all days of the year. MCS Services will only be provided during Emergency Business Hours for tickets with a severity of “Critical,” as specified in the table below. Innovative may validate Customer tickets and determine, in its sole discretion, if any such request has an appropriate Ticket Severity and to update the Ticket Severity based upon business impact and ticket characteristics.
| Ticket Severity | Description | Example Characteristics | SLA | Response Type |
| Critical | Critical
Business Impact |
· Unable to login to or access their cloud environment
· Critical security risk · Inability to complete a critical business function, such as access a solution that allows the customer to invoice their end users · Production system outages · Issues surrounding data loss that requires going to a backup or failover
|
2 hours | Phone call and ticket update |
| High | Significant Business
Impact |
· SSO login is inconsistent
· High Security Risk (vulnerability patching) · Production system is functional, but with inconsistent results
|
8 hours | Ticket update with acknowledgement |
| Standard | Normal
Business Impact |
· End user permission configuration issues
· Access requests · Network changes · Patching · General inquiries
|
2 business days | Ticket update with acknowledgement |
12. SaveShare
Customers electing to use SaveShare, as described in an Agreement, agree to the following terms:
- No Other Warranty. SaveShare is provided AS IS. Innovative does not represent or warrant that SaveShare will achieve a specific result and disclaims any implied warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and any representation or warranty that may arise through a course of dealing. You acknowledge that the use of the Service may not be uninterrupted, error free, or completely secure. You represent that you have not relied on any representation or warranty other than those stated in these Services Terms.
- Your Indemnification of Innovative. You agree that if a third party asserts a legal claim against Innovative or any of its officers, members, managers, employees, staff, personnel, agents, licensors, suppliers, resellers or distributors arising from your violation of these terms or any Agreement, including your breach of a representation or warranty, you will pay all reasonable costs of defending the claim, including reasonable attorney fees, and any damages awarded to the third party or paid to the third party as a reasonable settlement.
- General. You acknowledge that Innovative has set its charges and entered into an Agreement in reliance on the limitations of remedies and liability stated herein, and that these limitations reflect an agreed allocation of risk between you and Innovative. The limitations stated in this section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
13. Schedule
Innovative will use commercially reasonable efforts to perform Services in accordance with the schedule set forth in the applicable Agreement. Innovative shall not be responsible for delays which are beyond its control or which result from the delay or fault of Customer or any third party.
14. 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.
15. 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 invoices issued in connection with services performed by Innovative, which shall include but is not limited to, invoices related to projects in which services are provided, professional services and managed services (each, a “Services Invoice”), must be paid within five (5) days of its due date as set forth in the invoice. If Customer fails to pay any Services Invoice within five (5) days of the applicable due date, Innovative shall, immediately upon notice to Customer, cease providing such services unless and until Customer pays to Innovative (a) a sum equal to the greater of (i) the pause fee as set forth in the Agreement, and (ii) $5,000 per for each week in which payment is not received, and (b) the amount outstanding under the applicable unpaid invoice and any late charges with relation to the same and as set forth below. If Customer fails to pay any invoice, inclusive of but not limited to Services Invoices, within five (5) days of the applicable invoice due date, 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 2% per month of the overdue amount. Customer hereby agrees and acknowledges that it shall not dispute with its credit card company or financial institution any payments made to Innovative without first making a good faith attempt to resolve and remedy any underlying event or circumstance prompting such a dispute. Customer shall pay all travel expenses of Innovative personnel at Innovative’s then current standard hourly rate and shall also pay (and indemnify Innovative against any additional taxes, fees, fines, penalties, interest or other amounts that may become due and payable in the event of Customer’s non-payment of) 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 these MCS Terms and Conditions, except for income taxes on Innovative’s profits. Customer expressly authorizes Innovative to debit any bank account, or charge any credit, debit, bank or charge card, provided by the Customer for any amount(s) 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). Innovative may terminate any previously granted License to the Customer upon Customer’s failure to pay any invoice when due, without further notice to the Customer. No delay on the part of Innovative in exercising any of its rights upon the termination of the License shall constitute a waiver thereof.
16. Termination
Either party may terminate an Agreement for any reason upon 30 days’ written notice to the other party. If terminated by Customer prior to the end of a Term specified in an Agreement, Customer shall owe and pay to Innovative a termination fee equal to the remaining charges under such Agreement for the remainder of the Term. 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 Company fails to fulfill any material obligation contained in these MCS Terms and Conditions 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.
17. Warranties; Disclaimers; Limitation of Liability
Innovative does not provide any warranty as to Hardware, Third Party Software, or services provided by third parties, including but not limited to any “cloud” based services. Customer understands that it is to look only to the warranties, if any, provided by the manufacturers of such Hardware and the providers of any such Third Party Software or third party services.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN ANY AGREEMENT, INNOVATIVE DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES, 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, SOFTWARE, HARDWARE 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. ANY SEPARATE WRITTEN WARRANTY, IF APPLICABLE, IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF INNOVATIVE FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT, DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, SERVICES, HARDWARE AND ANY AND ALL OTHER GOODS AND SERVICES NOW OR IN THE FUTURE PROVIDED BY INNOVATIVE. 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.
Any and all warranties, if any, contained in these MCS Terms and Conditions or in any Agreement shall terminate and become null and avoid if any unauthorized modifications to the Hardware or Software are made by any party other than Innovative, or if the Hardware or Software is used other than in accordance with any specifications or documentation provided by Innovative.
18. Confidentiality
The Innovative Software constitutes a valuable and proprietary asset of Innovative. Customer agrees not to sell, transfer, publish, disclose, display or otherwise make available to others for any reason or purpose any source code, object code, documentation or other material relating to the Innovative Software, and to use a degree of care at least as great as it uses with its own confidential information (and no less than a commercially reasonable degree of care) to preserve the confidentiality of the Innovative Software and its code.
Innovative acknowledges that in the course of carrying out the Services it may obtain confidential or proprietary information of Customer, and agrees to use a degree of care at least as great as it uses with its own confidential information (and no less than a commercially reasonable degree of care) to preserve the confidentiality of such confidential information.
These MCS Terms and Conditions are deemed to incorporate and shall be subject to, the terms and conditions of any separate confidentiality and non-disclosure agreement entered into by and between or among Innovative and Customer. In the event of any conflict or inconsistency between such separate confidentiality and non-disclosure agreement and these MCS Terms and Conditions, the terms and conditions of the separate confidentiality and non-disclosure agreement shall govern.
19. 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. For the purposes of the standard contractual clauses, Innovative shall be the data processor and Customer shall either be a data processor or a data controller. In the event that Customer is a data controller, Module 2 shall apply. In the event that Customer is a data processor, Module 3 shall apply. In either case, it shall be Customer’s obligation to complete Appendix 1 to the standard contractual clauses and send to Innovative before transferring any personal data subject to the GDPR to Innovative.
20. 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 20, 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 20 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 20.
21. Infringement Indemnity
Innovative will indemnify, defend and hold harmless Customer from and against any third party action brought against Customer based upon a claim that the Generic and Pre-existing Software, as provided by Innovative to Customer under the applicable Agreement and used within the scope of such Agreement and these MCS Terms and Conditions, infringes any patent or copyright of such third party; provided that (i) Customer promptly notifies Innovative in writing of the third party claim, (ii) Customer grants Innovative sole control of the defense and settlement of the claim, and (iii) Customer provides Innovative with all assistance, information and authority required for the defense and settlement of the claim.
If Customer’s use of any Generic and Pre-existing Software is, or in Innovative’s opinion is likely to be, enjoined due to the type of infringement specified in the preceding paragraph, Innovative may, at its sole option and expense, (i) procure for Customer the right to continue using such Generic and Pre-existing Software, (ii) replace or modify such Generic and Pre-existing Software so that it is non-infringing, or (iii) if options (i) and (ii) cannot be accomplished despite Innovative’s reasonable efforts, then Innovative may terminate Customer’s rights and Innovative’s obligations with respect to such Generic and Pre-existing Software and refund to Customer any prepaid fees for such Generic and Preexisting Software.
Notwithstanding the foregoing, Innovative will have no liability for infringement claims of any kind arising from (i) any impermissible use of the Software, (ii) alteration or modification of the Software other than by Innovative; (iii) use of the Software in combination with third-party software or hardware other than as specified by Innovative, if a claim would not have occurred but for such combination; (iv) failure to use updated or modified versions of the Software provided by Innovative; or (v) Innovative’s compliance with designs or specifications provided by Customer.
THE PROVISIONS OF THIS SECTION ENTITLED “INFRINGEMENT INDEMNITY” SET FORTH INNOVATIVE’S SOLE AND EXCLUSIVE OBLIGATIONS AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ACTUAL OR ALLEGED THIRD PARTY CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Customer will indemnify, defend and hold harmless Innovative, its affiliates and their respective officers, directors, shareholders, employees, representatives and agents from and against any third party action brought against Innovative based upon a claim that content, designs or information provided by Customer to Innovative infringes any intellectual property rights of such third party; provided that (i) Innovative promptly notifies Customer in writing of the third party claim, (ii) Innovative grants Customer sole control of the defense and settlement of the claim, and (iii) Innovative provides Customer with all assistance, information and authority required for the defense and settlement of the claim.
22. Delays or Defaults
Innovative shall not be liable for delays or defaults in furnishing goods or 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 goods or 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.
23. 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 MCS Terms and Conditions 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 MCS Terms and Conditions.
24. General
Any notices or communications to be delivered to Innovative must be in writing and delivered to Innovative’s corporate office at the Mailing Address listed below. 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 MCS Terms and Conditions, 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 MCS Terms and Conditions shall not constitute a waiver of such right or provision. Any provision of these MCS Terms and Conditions 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 MCS Terms and Conditions 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 these MCS Terms and Conditions 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 MCS Terms and Conditions. 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.
Unless otherwise stated, all fees are in US Dollars.
Contact Information
If users have any questions or suggestions regarding our privacy policy, please contact us at:
Phone: (585) 292-5070
Mailing Address: 4545 East River Road, Suite 100, West Henrietta, NY 14586