Effective: August 15, 2024

These Terms of Service (the “Agreement”) govern the provision of products and services by WaTech Computer Services, Inc. (“WaTech”), a Michigan corporation, to Customer (hereinafter “Customer”) (each a “Party” and collectively, the “Parties”). By engaging WaTech for services or accepting products and services provided by WaTech, Customer agrees to be bound by this Agreement.

1. Scope. The scope of this Agreement is a “master” agreement and encompasses any and all products and services provided by WaTech to Customer during the Term of this Agreement.

1. Order Form. WaTech may issue a Quote for products and/or services, which upon its acceptance, shall become the “Order” describing the products and services to be provided, costs and pricing, timing and delivery, and any other details or additional terms. An Order shall be valid and enforceable under the terms of this Agreement. To the extent any terms in an Order conflict with this Agreement, the terms in the Order will take precedence. For purposes of clarity, WaTech’s services are to the “Customer” identified in the Order and not any third party, including any subsidiaries and affiliates, unless otherwise expressly agreed by WaTech. In addition, the coverage of WaTech’s services are specifically limited to the information technology systems of Customer as contemplated by WaTech at the time of the Order (e.g., services do not cover the personal computers, devices, and home networks of company personnel if company is the “Customer”).

1. Change Orders. During the term of this Agreement, if the Parties desire to make changes to an existing Order, they may issue a Change Order. A Change Order shall be valid and enforceable under the terms of this Agreement upon being accepted by the Parties and, upon its acceptance, shall be incorporated into this Agreement.

1. Estimates. Any estimate or quotation provided by WaTech, whether made orally or in writing, is provided for budgetary purposes only. WaTech reserves the right to modify any estimate or quotation in its discretion up and until its mutual acceptance. 

1. Ancillary Services. Ancillary Services are those services that may be provided by WaTech (or WaTech’s designated partners) ancillary to and beyond that which is covered by WaTech’s managed services. Ancillary Services include, but are not limited to, time spent and services rendered in relation to equipment damage, network failures, facilities issues, audit and compliance (e.g., IT and cybersecurity due diligence questionnaires), malware infections, cybersecurity incident response, recovery, and remediation, and any special projects, etc., as well as any other services beyond WaTech’s routine managed service support. Except as set forth in Section 18 Cybersecurity Threats and Response, WaTech will obtain Customer’s prior approval for any Ancillary Services to be provided. Ancillary Services will be billed on a time and material basis at WaTech’s then applicable hourly rates for such services (or the then rates of WaTech’s designated partners). WaTech reserves the right to add a markup to any material supplied in relation to Ancillary Services.

1. Cooperation. Customer acknowledges that WaTech’s ability to perform is dependent upon Customer’s cooperation, which may include Customer supplying certain access, information, specifications, feedback, and other items, as WaTech may reasonably determine. Customer hereby agrees to provide such cooperation in a timely manner upon WaTech’s reasonable request.

1. Service Start Date. The expected start date for any service to be provided by WaTech may be subject to the satisfaction of certain requirements, including, but not limited to, the receipt of any required materials, information, or payments, and the completion of any site preparation and necessary installations. Regardless of any specific timing or delivery schedules or estimates provided in an applicable Order or Change Order, Customer acknowledges that the services rendered by WaTech are of a complex nature and that occasional delays in delivery sometimes occur. Minor delays in delivery by WaTech shall not constitute a breach of this Agreement. If WaTech expects a delay in delivery to occur, WaTech will make commercially reasonable efforts to keep Customer apprised of such delay.

1. Installation. WaTech shall install any products or materials that are to be installed according to its fee for such installation, if any. Dates or timelines provided for installation are only estimates and actual timing may vary. Customer is responsible for preparing and maintaining the site for installation, including providing the necessary infrastructure, including any electrical power, communication lines, HVAC, and physical security, etc. that may be needed for the particular products or services.

1. Managed Services. As part of any WaTech managed service, WaTech may provide Customer additional products and services based on its understanding of Customer’s needs and/or Customer’s consumption of the services. This may result in changes to or increases in billing different from that set forth in the original Order. Customer’s acceptance of these changes is presumed unless objected to in writing before payment for such products and services is due. Likewise, WaTech may provide Customer additional services related to system maintenance, updates, replacements, and upgrades to maintain or improve the performance of Customer’s information technology systems. Such improvements may result in changes to or increases in billing different from that set forth in the original Order. Customer’s acceptance of these improvements is presumed unless objected to in writing before payment for such products and services is due.

1. Acceptance of Delivery; Right to Cure. Within thirty (30) days of the delivery of any product or service, Customer shall notify WaTech of any material nonconformance, otherwise, Customer’s acceptance of such product or service shall be presumed and any claims Customer may have concerning such matter shall be waived. Upon WaTech receiving any such notice, WaTech shall have thirty (30) days to cure through as many attempts as may be necessary. Any claim(s) by Customer disputing any invoice is waived unless made within six (6) months of the applicable invoice.

1. Payment Terms. Payment for recurring services shall be invoiced at the start of every month for the services to be provided in that month (or other billing cycle customary between WaTech and Customer). All payments are due within thirty (30) days of invoice (Net 30). Late payments are subject to a $29.00 late payment fee. Payments more than 30 days late are subject to interest charges of 3.0% per month. Except as otherwise set forth in an applicable Order, all payments for products (e.g., hardware and equipment) greater than FIVE THOUSAND DOLLARS ($5,000.00) shall be due upon order.

1. Term; Renewal. The Term of this Agreement shall be 12-months from the Effective Date and shall automatically renew on its anniversary for an additional 12-month term after which this Agreement shall be renewed on a month-to-month basis.

1. Termination. During the initial Term and any 12-month renewal term, this Agreement may be terminated by either Party without cause upon 60-days’ written notice to the other Party. During any month-to-month Term, this Agreement may be terminated by either Party without cause upon 30-days’ written notice to the other Party.

1. Default.  Nonpayment shall be deemed a material breach of this Agreement and may result in the stoppage of any and all services and WaTech’s enforcement of any and all rights to which WaTech may be entitled.
2. Independent Contractor. The Parties agree that WaTech is an independent contractor and not an employee, partner, agent, or joint venture of Customer.

1. Subcontracting. WaTech reserves the right to utilize subcontractors and other vendors in its sole discretion.

1. Access Rights. WaTech, its employees, agents, designees, and assigns shall be permitted access to Customer’s facilities upon reasonable request for the purposes of fulfilling its obligations hereunder. However, Customer shall remain responsible for ensuring the security of its facilities and IT systems prior to, during, and following such access.

1. Cybersecurity Threats and Response. In the event of an immediate cybersecurity threat to Customer’s information technology systems managed by WaTech, WaTech reserves the right (but has no obligation) to take any reasonable measures in its discretion to respond to and remediate such risk without prior notice to or authorization from Customer. Customer agrees to compensate WaTech for all reasonable costs associated with responding to and remediating cybersecurity threats  not arising from WaTech’s own negligence. For clarity, cybersecurity response, remediation, and recovery services are not covered by WaTech’s standard managed services and will be billed as Ancillary Services at WaTech’s then applicable hourly rates (or the then rates of WaTech’s designated partners), if and to the extent such services are rendered.

1. Information Security and Compliance. Customer is solely responsible for securing and protecting any and all information technology systems not exclusively managed by WaTech and for its compliance with any and all laws and regulations. Where WaTech and Customer have shared responsibilities for any information technology systems or components, each Party shall be responsible only for the portion of such systems and components within its principal control.

1. Reporting Security Incidents and IT Changes. Customer shall promptly report to WaTech (a) any information security incidents, including any known or suspected threats to the security of its information systems, and (b) any material changes to Customer’s information technology systems including,  changes in its IT personnel, administrator privileges, workstations and endpoints, networked equipment, network configurations, data backup or storage practices, Internet Service Provider (ISP), or any non-routine changes to software or applications.    

1. Assumption of Risk. Customer acknowledges that the use of information technology systems, especially those connected to the Internet, carry inherent risks, such as cyberattacks, technology faults, failures, breakage, and malfunctions, which may result in the loss of or disruption to the confidentiality, integrity, and availability of data, and the disruption and loss of computing and information systems. Customer expressly agrees to assume such risks with respect to the products and services provided hereby.

1. Mutual Indemnification and Insurance. Each Party agrees to indemnify and defend the other Party from and against any and all third-party claims arising out of its own acts or omissions. Both parties agree to maintain adequate liability insurance customary for their respective activities.

1. Third Party Services. Customer agrees to assume full responsibility for its compliance with all third-party software licenses and terms of service, including that such licenses are properly maintained. WaTech hereby disclaims any and all liability for or relating to Customer’s use of third-party software and the use of out-of-support, end-of-life, and/or deprecated software and hardware and may deny or limit the provision of its services for failures relating thereto. Customer’s use of or access to any third-party products and services provided under this Agreement shall be strictly limited to and governed by any such agreements, licenses, terms of service, or the like, associated with such products and services. Customer’s sole and exclusive remedy with respect to a third-party product or service shall be limited to any remedy against that third-party that may be made available by such third party and under no circumstances will Customer look to WaTech for any such remedy. Customer agrees to be bound by any agreement, including, but not limited to, any terms of service and license agreements, of any third-party products or services, provided to Customer under this Agreement

1. Disclaimers. ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WATECH DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WATECH DOES NOT WARRANT THE WORK AND SERVICE PROVIDED WILL BE UNINTERRUPTED AND/OR ERROR FREE. WATECH DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING FOR LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF CUSTOMER, AND DO NOT EXTEND TO ANY THIRD PARTY. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, WATECH SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR, OR WARRANTY OF ANY OF THIRD-PARTY PRODUCTS OR SERVICES.

WATECH HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO COMPLIANCE WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), THE GRAMM-LEACH-BLILEY ACT (GLBA), THE EU GENERAL DATA PROTECTION REGULATION (GDPR), CALIFORNIA PRIVACY RIGHTS ACT (CPRA) AND SIMILAR U.S. PRIVACY LAWS, THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (PCI DSS), THE DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT (DFARS), THE FBI CRIMINAL JUSTICE INFORMATION SERVICES REQUIREMENTS (CJIS), THE NEW YORK DEPARMENT OF FINANCIAL SERVICES CYBERSECURITY REGULATIONS (NYDFS), THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR), AND ANY OTHER PRIVACY OR DATA PROTECTION, SECURITY, OR EXPORT CONTROL REQUIREMENT. WATECH SHALL NOT BE RESPONSIBLE FOR AND MAY REFUSE TO SUPPORT (1) OUT-OF-SUPPORT, DEPRECATED, AND/OR END-OF-LIFE SOFTWARE, OPERATING SYSTEMS, AND HARDWARE; (2) SYSTEM INTEROPERABILITY; AND (3) IMPROVISED OR UNINTENDED USES OF SYSTEMS AND APPLICATIONS.

1. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WATECH BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. WATECH’S TOTAL POSSIBLE LIABILITY UNDER THIS AGREEMENT WHETHER ARISING FROM CONTRACT, TORT, OR OTHERWISE, SHALL BE STRICTLY LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS ($5,000.00) OR THE TOTAL AMOUNT CUSTOMER HAS PAID WATECH IN SERVICE FEES IN THE PRECEDING THREE (3) BILLING CYCLES.

CUSTOMER FURTHER AGREES THAT NO TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER, SHAREHOLDER, BENEFICIARY, EMPLOYEE OR AGENT OF WATECH SHALL BE HELD TO ANY LIABILITY, JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM, DEMAND, JUDGMENT, DECREE, LIABILITY OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THIS AGREEMENT.

1. No Wavier. WaTech’s failure to seek redress for a violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation.

1. Confidentiality. Except as the Parties may otherwise agree (e.g., by and through a separate nondisclosure agreement), no information disclosed by Customer, either directly or indirectly, or made available or accessible to WaTech or its employees, subcontractors, agents, designees and assigns, shall be subject to confidentiality or nondisclosure obligations and Customer hereby waives and releases WaTech from any claim or liability relating to such matter. Notwithstanding the foregoing, except as may be required by law or legal process, during the term of this Agreement, WaTech will use reasonable care to not disclose Customer’s nonpublic information to any third parties except as reasonably necessary to provide its services and operate its business, or as may otherwise be disclosed as part of an acquisition, merger, or other corporate transaction involving WaTech.

1. Intellectual Property; Licenses. Neither Party shall acquire any right, title, or interest in any intellectual property of the other Party. Customer shall give WaTech a limited, nonexclusive, fully paid, royalty-free license to copy, modify, and distribute Customer’s data (“Customer Data”) as necessary for WaTech to provide its services and fulfill its obligations under this Agreement.

1. Non-Solicitation. During the term of this Agreement and for a period of 24-months thereafter, Customer shall not directly or indirectly solicit, recruit, or employ any employee of WaTech without the prior written consent of WaTech. The Parties agree that money damages would be insufficient to address a violation of this provision and agree that WaTech is entitled to injunctive relief in addition to any other rights and remedies.

1. Notices. All notices, demands, and communications required or permitted in connection with this Agreement will be in writing and shall be deemed effectively given in all respects upon delivery to a Party’s principal place of business by registered mail or by personal delivery by a Party or a third-party courier or, in the alternative, if delivered by email to WaTech at info@watech.com and to Customer at Customer’s then primary email address on file.

1. Incorporation. This Agreement specifically incorporates any applicable Orders and Change Orders under this Agreement.

1. Force Majeure. In no event shall WaTech be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, pandemics, acts of God, and interruptions to or the loss or malfunctions of utilities, communications or computer (software or hardware) services.

1. Governing Law. This Agreement shall be governed in accordance with the internal laws of the state of Michigan without regard to conflict of laws principles.

1. Dispute Resolution. Any dispute or disputes arising out of or relating to this Agreement (“Dispute”) shall be resolved in accordance with the following:

(a)        Negotiation. Upon written notice of any Dispute, the Parties shall first attempt to resolve it within 30 days by negotiation between executives who have authority to settle the Dispute (the “Negotiation”).

(b)        Mediation. If the dispute has not been resolved by Negotiation, then the Parties shall proceed to mediation unless the Parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. The Parties shall agree on a mediator; however, if they cannot agree within 14 days then JAMS Detroit Resolution Center shall appoint a mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last for at least one full mediation day, before any Party has the option to withdraw from the process. The Parties may agree to continue the mediation process beyond one day, until there is a settlement agreement, or one Party [or the mediator] states that there is no reason to continue because of an impasse that cannot be overcome and sends a “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session.

During the course of the mediation, no Party can assert the failure to fully comply with the Negotiation, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the Parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. Each side shall bear an equal share of the mediation costs unless the Parties agree otherwise.

All communications, both written and oral, during the Negotiation and the Mediation are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider.

(c)        Arbitration. Any Dispute not resolved through Negotiation or Mediation shall be resolved by final and binding arbitration in accordance with the JAMS Arbitration Rules and Procedures. The arbitration will be held at the JAMS Detroit location using one arbitrator unless the Dispute exceeds one million dollars (USA) in which case there shall be three neutral arbitrators, as a panel. The Parties understand that arbitration is final and binding and that they are waiving their rights to other resolution processes, such as court action or administrative proceeding, and their right to a jury.

If a Party fails to attend or comply with the arbitration, the arbitrator will proceed with the arbitration. A Party may enter an arbitration award as a judgement in any Michigan court of competent jurisdiction.

1. Class Action Waiver. THE PARTIES AGREE THAT ANY DISPUTE SHALL BE RESOLVED IN EACH PARTY’S RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.

1. Privacy Policy; Acceptable Use.

Privacy Policy. WaTech’s Privacy Policy is available at https://www.watech.com/privacy, as may be updated from time-to-time.

Acceptable Use. WaTech’s services may not be used for unlawful, fraudulent, offensive, or obscene activity, as determined in WaTech’s discretion. WaTech reserves the right to audit, inspect, and monitor Customer’s use of its services and to suspend or terminate Customer’s services upon a violation.

1. Survival. The expiration or termination of this Agreement shall not release Customer of its obligation to make any payments owed under this Agreement. Further, the Parties agree that the indemnification provision set forth in Section 22, the disclaimers set forth in Section 24, and the limitation of liability provision set forth in Section 25 shall survive expiration and termination of this Agreement. Furthermore, the non-solicitation set forth in Section 30 shall survive for its respective term.

1. Modification. Customer acknowledges and agrees that WaTech may, in its sole discretion, modify this Agreement from time-to-time, and that the modified terms become effective thirty (30) days from the date of such modification. Customer will be notified of modifications through updates to https://www.watech.com/termsofservice and/or by direct email communication. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued engagement of WaTech after the effective date of the modifications shall constitute Customer’s acceptance of the modified terms.

1. Assignment; Successors and Assigns; No Third-Party Beneficiaries. WaTech may assign this Agreement upon written notice to Customer. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, heirs, and assigns. There are no intended beneficiaries other than the Parties hereto.

1. Severability. If any term or provision of this Agreement is held to be invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall remain in full force and effect.

1. Construction. Unless the context of this Agreement otherwise requires: (1) words importing the singular include the plural and vice-versa, (2) the use of all pronouns shall be interchangeable and considered gender neutral, and (3) section headings and paragraph titles in this Agreement are for convenience only and form no part of this Agreement and shall not affect its interpretation.

1. Export Regulation; U.S. Government Rights.

43.1 Export Regulation. The products and services provided utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the products and services or the software or technology included in the products and services to, or make the products and services or the software or technology included in the products and services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the products and services or the software or technology included in the products and services available outside the US.

43.2 U.S. Government Rights. Each of the software components that may constitute the products and services and Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the products and services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.

1. Opportunity to Review. Each Party hereto acknowledges and agrees that it had sufficient time and opportunity to review prior to executing this Agreement.

1. Entire Agreement. This Agreement and any Orders and Change Orders that may be duly issued hereunder, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and, upon its effectiveness, shall supersede all prior agreements, understandings and arrangements, both oral and written, with respect to the subject matter.

1. Authority. The Parties hereto represent and warrant that they are legally authorized to enter into this Agreement and that each has the full power and authority to perform this Agreement and has taken all actions required to authorize the execution and delivery of this Agreement.