Innovative Data Processing Solutions LLC

STANDARD TERMS AND CONDITIONS

1. Applicability

These Standard Terms and Conditions shall govern and apply to all products and 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 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 Standard Terms and Conditions shall supplement and be deemed incorporated into each Agreement and, in the event of any conflict or inconsistency between these Standard Terms and Conditions and any Agreement, these Standard 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 custom programming techniques (“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 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 Generic and Pre-existing Software. Upon completion of, and receipt of full payment for, the Innovative Software, Innovative will assign to Customer the copyright to any Innovative Software and all rights to transfer the Innovative Software, and will deliver to Customer media containing complete copies of the then-most-current source code and object code thereto. However, all contrary provisions notwithstanding Innovative shall not in any event be prohibited from independently developing, without use of the code for the Innovative Software other than as permitted above, 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 Innovative Software. Innovative may retain one or more copies of the Innovative Software in object and/or source code form and the documentation thereto for archival purposes and other purposes permitted hereunder.

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’ Standard 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 Solutions 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 Solutions 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 Solutions 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 Solutions 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 Solutions 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 Solutions and/or AWS, and Innovative Solutions shall have no further obligation to Customer nor shall Innovative Solutions 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. Tailwinds

If Customer utilizes the Tailwinds service from Innovative, Customer acknowledges and agrees to the following additional terms:

(a) No Accuracy Warranty: The responses from Tailwinds are not guaranteed to be accurate, and Innovative shall not be liable for any decisions made based upon such information.
(b) Data Storage and Security: Customer data will be stored within accounts managed by Innovative using third parties such as AWS and IBM and will use commercially reasonable efforts to ensure such data is stored securely.
(c) Usage of Data: Any Customer data provided to Innovative through Tailwinds may be used by Innovative and its partners for the purpose of analyzing and improving the chat experience, improving the accuracy of responses, and to assist with requests made of Innovative through the Tailwinds service.
(d) Data Sharing: No Customer data collected through Tailwinds will be shared with or sold to any third party with which Innovative does not have a business relationship as it relates to delivering the Tailwinds service. For the avoidance of doubt, Innovative may share data collected using Tailwinds with infrastructure partners such as AWS, software providers such as IBM, and integration partners such as Slack as necessary to effectively deliver the service.
(e) Disclaimer of Liability: In addition to the warranty and limitation of liability language herein, Innovative shall not be liable for any direct, indirect, incidental, consequential, or other damages arising from the configuration or use of Tailwinds.
(f) Data Retention: Customer data collected will be retained for a period necessary to fulfill the purposes outlined herein, in compliance with our data retention policies and any applicable law or laws.
(g) User Responsibilities: Customer’s employees, affiliates, partners, and other users which are authorized by both Customer and Innovative to use the Tailwinds service must do so in a lawful manner and provide accurate and lawful information when doing so.
(h) Termination and Suspension: Access to the Tailwinds service may be suspended or terminated at any time, at the sole discretion of Innovative.
(i) Use of Tailwinds, shall be subject in all respects to and shall be governed by the terms and conditions set forth in Innovative’s Tailwinds Subscription Software Agreement, which can be accessed at https://innovativesol.com/twterms and which are hereby incorporated by reference and shall have the same force and effect as if fully set forth herein.

7. Schedule

Innovative will use commercially reasonable efforts to perform Services and provide Hardware 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.

8. 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.

9. 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 Standard Terms and Conditions, 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) 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.

10. 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 Company fails to fulfill any material obligation contained in these Standard 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.

11. 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 Standard 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.

12. 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 Standard 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 Standard Terms and Conditions, the terms and conditions of the separate confidentiality and non-disclosure agreement shall govern.

13. 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.

14. 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 14, 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 14 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 14.

15. 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 Standard 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.

16. 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.

17. 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 Standard 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 Standard Terms and Conditions.

18. Additional Terms for Services Agreements

Each Agreement shall include the following additional terms.

1. For Agreements which reference deployment on AWS infrastructure:
   1. Costs. Customer is responsible for all costs required to operate all associated environments, including but not limited to services from AWS, third-party products, and all necessary licenses.
   2. Access. Innovative requires and Customer agrees to provide administrative access to Customer’s AWS tenant.
   3. AWS Business Support. Customers with AWS environments must be covered by AWS business level support or better, at Customer’s cost.
   4. Regions. Any Agreement which includes deployment on AWS infrastructure shall be limited to public AWS regions only and explicitly excludes special access regions such as certain regions in China, GovCloud, or C2S.
   5. Cloud Variability. Latency, availability, and performance of any application or components running on AWS are dependent upon design decisions and operating constraints of both Customer’s application and the AWS cloud environment.
2. For Agreements which reference a Pod delivery model:
   1. Product Owner. Customer shall designate a Product Owner to make decisions regarding Stories, Backlog, prioritization, technical requirements, and acceptance. The Customer Product Owner will manage the Backlog and Tasks assigned to the Team. Customer agrees that their designated Product Owner will review and approve Sprint deliverables. Any Sprint deliverables not approved by the Product Owner within one (1) business day of a Sprint review ceremony will be rolled forward into the following Sprint.
   2. Dates. The Estimated Engagement Start Date may not align with the start of a calendar month. In this case, Innovative will deliver invoices every 30 days after the date the engagement actually begins (“Kickoff Date”.)  All invoices are billed at the start of the period of performance and are not submitted in arrears.
   3. Business Hours. Team resources shall only be available during normal business hours (Monday-Friday 8am-5pm ET), unless an exception is mutually agreed upon between Customer and Innovative.
   4. Pod Delivery Model. The first Sprint is dedicated to Sprint planning and grooming only. Agreements with Pod delivery models do not guarantee, represent, or imply that Innovative shall provide any specific deliverables at any specific time.  Should Customer require a specific deliverable by a specific time, Pod is not the appropriate delivery model, and Customer shall notify Innovative immediately.
   5. Customer Cooperation. All relevant parties from the Customer’s team must attend and participate in Sprint ceremonies to ensure continued progress.  During such ceremonies the following topics may be discussed: backlog grooming, Sprint planning, Sprint reviews, product demonstrations, Customer acceptance, Sprint retrospectives, and other agenda items as necessary.  Customer will provide the Sprint team with the necessary access and information to work on items in the Backlog. Any items deemed by Innovative to have insufficient requirements for development will be removed from the Sprint(s) until the Customer provides the Pod with sufficient information to implement. Customer will have a technical team available to assist with clarification, cutover scheduling, and testing.
   6. Remediations. Deliverables may not be error-free. Any deficiencies in deliverables identified during a Sprint review or post-release will be documented as bugs and work shall be prioritized by the Product Owner during Backlog grooming and Sprint planning meetings (“Remediations.”) Any emergency patches or hotfixes requested must be reviewed and approved by both the Innovative Project Manager, Innovative Sprint resources, and customer Product Owner. These emergency patches or hotfixes will be assessed for potential impact prior to being applied. Development of any Remediation, emergency patches, or hotfixes will necessitate a review of the current Sprint and will require an equivalent amount of tasks to be removed from the defined Sprint prior to the development of the emergency patches or hotfixes. The Customer shall be exclusively responsible for assessing the impact of any Remediations, emergency patches, or hotfixes prior to being approved and applied.
   7. Limitation on Software Changes. Unless specified in an Agreement,  application or software code changes, other than minor configuration file updates, are out of scope for this engagement and are the responsibility of customer.  Customer is exclusively responsible for application code changes and application configuration changes that may be needed.
      1. Acceptance Criteria.  Agreements with the Pod delivery model shall follow this process for acceptance.
      2. Acceptance Review Duration. The Acceptance Review Duration is three days, excluding weekends and US federal holidays.
      3. Process. Work is to be performed within Sprints. At the end of each Sprint, the Product Owner must sign off on the work performed and deliverables provided during the Sprint.  If additional work is needed to complete tasks or deliverables, these items will be captured and prioritized for completion in a subsequent Sprint. Should deficiencies be identified in any of the deliverables, those deficiencies will be documented as bugs and added as Remediations to the backlog for prioritization during an upcoming Sprint planning meeting.  The Customer Product Owner will decide if the identified deliverable is approved for release with the known deficiency or will be removed from the release candidate list.
      4. Deemed Acceptance. Any Innovative work not explicitly accepted or rejected by Customer within three calendar days after delivery will be deemed accepted by Customer.
3. For Agreements which do not reference a Pod delivery model:
   1. Product Owner. Before work begins, Customer shall designate a Product Owner to make decisions regarding scope, prioritization, technical requirements, and acceptance. Customer agrees that their designated Product Owner will review and approve Deliverables.
   2. Dates. The Estimated Engagement Start Date is an estimate and dependent upon Innovative resource availability and scheduling.  The Estimated Engagement End Date is an estimate and dependent upon the progress of work throughout the Project, discovery or clarification of requirements and constraints, resource availability, and other factors. Innovative will use reasonable efforts to assure that the Services are delivered substantially according to the schedule in an Agreement. Customer agrees to provide Innovative with all necessary information or sign-offs by the dates indicated in any Agreement. Customer agrees to provide resources to support completion of the Agreement by the Estimated Engagement End Date.  If Customer requests changes or does not provide scheduling or resource availability that allow the Scope to be completed by the Estimated Project End Date, Customer will be charged for all AWS Funding as invoiced to “AWS Funding Program.” If Innovative later receives payment from AWS for such invoices, Customer will be refunded an amount equal to the amount actually received from AWS Funding within 30 days of Innovative’s receipt of the AWS Funding.
   3. Business Hours. Project team resources shall only be available during normal business hours (Monday-Friday 8am-5pm ET), unless an exception is mutually agreed upon between Customer and Innovative.
   4. Customer Cooperation. Customer agrees to provide Innovative with the necessary access and information to work on the Scope and Deliverables. Any items deemed by Innovative to have insufficient requirements will be removed from the Scope and Deliverables until the Customer provides sufficient information to implement. Customer agrees to provide available technical resources to assist with clarification, cutover scheduling, and testing.
   5. Remediations. Deliverables may not be error-free. Any deficiencies in deliverables identified by Customer will be documented as bugs and work shall be prioritized or workaround accepted by the Product Owner (“Remediations.”) Any emergency patches or hotfixes requested must be reviewed and approved by both the Innovative Project Manager, Innovative resources, and Customer Product Owner. These emergency patches or hotfixes will be assessed for potential impact prior to being applied. The Customer shall be exclusively responsible for assessing the impact of any Remediations, emergency patches, or hotfixes prior to being approved and applied.
   6. Acceptance Criteria. Agreements with the Project delivery model shall follow this process for acceptance.
      1. Acceptance Review Duration. The Acceptance Review Duration is three days, excluding weekends and US federal holidays.
      2. Process. Innovative shall notify Customer when a Deliverable is substantially complete.  Customer shall review the Deliverable for acceptance and, within the Acceptance Review Duration, provide Innovative with feedback related to any specific defects. Innovative shall make revisions, if necessary, or notify Customer if a defect shall be corrected within an additional Acceptance Review Duration or if such work shall be considered a Customer Change.  Customer shall have the number of days specified by the Acceptance Review Duration to accept a Deliverable.
      3. Deemed Acceptance. Any Deliverable not explicitly accepted or rejected by Customer within the Acceptance Review Duration will be deemed accepted by Customer.
4. For Agreements which reference a migration to AWS, unless otherwise noted in Scope:
   1. Migration Agents. Customer is responsible for installation of Application Migration Service (MGN) agent. Innovative will provide basic troubleshooting, escalations will be done through AWS Business Level Support. All target instances and their OS type, version, and patches must be compatible with AWS MGN.
   2. Migration Process. Innovative shall migrate servers to AWS ‘as-is’ without operating system upgrades in flight. Customer is responsible for any operating system/package updates/licenses required by the migration.
   3. Bandwidth. Customer shall provide a minimum of 250Mbps of available bandwidth to the target instances to facilitate the migration.
   4. Downtime Expectations. All targets instances must have acceptable downtime requirements of at least 6 hours.
   5. Container Migrations. Container orchestration is not in scope, such as Kubernetes or OpenShift. If any target instances utilize containers, such instances will be migrated as independent compute instances without utilizing AWS or third-party orchestration services such as EKS or ECS.
5. Changes in Service.  An Agreement may be modified by Customer or Innovative as follows:
   1. Customer Changes. Customer may choose to pause, reduce, or cancel work under an Agreement after the Minimum Term specified in such an Agreement.  Any such pause, reduction, or cancellation by Customer is a “Customer Change.”  All Customer Change requests shall be made via email from the Customer Representative to the Innovative Project Manager and to contracts@innovativesol.com.  The following restrictions and conditions apply for Customer Changes and explicitly supersede any other agreement between the parties:
      1. No Customer Changes may be made within 30 days of the first signature date on an Agreement, and no Customer Changes may be made within 30 days of a prior Customer Change. Customer Changes will be approved or rejected by Innovative in its sole discretion by the 15th day of a month and, if accepted, will take effect on the first calendar day of the following month. Any request for changes received after the 15th day of a month will take effect the first calendar day of the second calendar month following Innovative’s acceptance
      2. The “Minimum Term” is defined in an Agreement.  Any fees resulting from a cancellation within the first 12 months following the execution date of an Agreement, will not be prorated and Customer is responsible for such charges for the entirety of the Minimum Term.  Cancellation after the Minimum Term is prorated on a whole-month basis, with full charges from the execution date of an Agreement through the end of the month in which cancellation is effective.
   2. Innovative Changes. Innovative may choose to pause or cancel this Agreement if Customer fails to make timely payments to Innovative as provided in an Agreement or under the terms outlined herein (an “Innovative Change”).
   3. Pauses and Change Orders.
      1. Pauses. A pause may be caused by a Customer Change or an Innovative Change. The fee to pause service (regardless of whether such pause is due to a Customer Change or Innovative Change) is 75% of the monthly charges for an engagement, prorated for the number of business days during which service is suspended.  “Monthly Charges,” if not defined in an Agreement, shall be calculated as the Project Total Charges or Engagement Total Charges (as defined in the Agreement) divided by the rounded number of months between the Estimated Project Start Date and Estimated Project End Date inclusive, where the rounding of number of months shall be done to the nearest tenth of a month. Products and Services set forth in this Agreement may be paused for a maximum of 2 contiguous months, after which the Innovative project team will be reassigned at Innovative’s discretion.  Any engagement paused for two months or more will be treated as a cancellation.
      2. Change Orders.  Other changes to an Agreement may be possible if agreed to in writing by both parties. Upon request by Customer, or upon determining the need for a change by Innovative, Innovative will prepare a document (“Change Order”), which both parties must sign prior to such a Change Order taking effect.

19. 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 Standard 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 Standard Terms and Conditions shall not constitute a waiver of such right or provision. Any provision of these Standard 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 Standard 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 Standard 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 Standard 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.

Contact Information

If users have any questions or suggestions regarding our privacy policy, please contact us at:

Phone: (585) 292-5070
Fax: (585) 292-1912
Mailing Address: 4545 East River Road, Suite 100, West Henrietta, NY 14586