Software Sales, Support Services, and Terms & Conditions

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Software Sales, Support Services, and Terms & Conditions

Terms & Conditions

Software Sales & Support Services Terms & Conditions

These Software Sales & Support Services Terms & Conditions (“Conditions”) provide applicable terms and conditions under which an end customer (“Client”) may procure certain software items and or any associated support services from XentIT, LLC (“XentIT”). Client hereby agrees that the following shall govern the sale and provision of all items or services provided by XentIT, and is herein incorporated into any executed Statement of Work to procure Software Items or Support Services from XentIT.

I. SCOPE

These Conditions provide the general terms and conditions affecting the Client’s ordering of Software Items and or Support Services through a Statement of Work from XentIT, as each term is detailed below. Individual Statements of Work shall contain specific pricing, payment, licensing, statements of work effort, essential assumptions for performance, and other technical terms and requirements which are intended to be binding upon the parties. If there is a direct conflict between these Conditions and any Statement of Work, the Statement of Work will control.

A) Software Item. Software Items include both Third Party Software, for which XentIT may be an authorized reseller or otherwise acquires a license on behalf of Client; as well as software tools or support components developed by XentIT for a particular Client.

B) Deliverable. Deliverables may be both installed and operational Software Items, other related and tangible products (e.g., training manuals), or individual milestones (e.g., performance of certain measures by certain dates) identified for the delivery of a Support Service.

C) Support Service. A Support Service may include basic installation of a Software Item, direct services including integration, performance tuning, testing, maintenance or modification of the Software Item, or may extend to ancillary services including operation, management, monitoring, training and documentation development.

D) Quote. An offer, substantially in the form of a Statement of Work, through which XentIT offers to perform work for a Client, which is accepted upon signature by the Client and becomes the applicable Statement of Work (“SOW”).

  1. All SOWs will be signed by authorized representatives of both parties reflecting specific details of any request for Software Item(s) and or Support Service(s), and incorporates these Conditions. SOWs shall include to the extent applicable:

a) Project identification, approach and objectives, the agreed upon scope of the services, the location where the services will be performed, a statement of work effort with phases and timelines;
b) The Deliverables to be provided, if any;
c) The fees for any Support Services;
d) The period of performance for any Support Services;
e) Any assumptions upon which performance, delivery schedules, or fees are based;
f) Staffing by the parties and any Client resource commitments and responsibilities in addition to those set forth in these Conditions;
g) Name, type, version, and licensing terms for all Software Item(s); and
h) Any other information or agreements deemed relevant by the parties.

II. ACCEPTANCE

A) Delegation. An authorized Project Manager designated by Client shall have overall responsibility for monitoring the performance of each SOW; accepting deliverables; coordinating the performance of any Support Services with XentIT; acting as a day-to-day contact with XentIT and for making available to XentIT the data, facilities, resources and other support necessary for XentIT to be able to perform in a timely and accurate manner.

B) Right to cure. If Client reasonably determines that any particular Deliverable fails in any material respect to meet the specifications and/or other acceptance criteria mutually agreed upon by the parties, Client shall (i) within ten (10) business days after the delivery or milestone, notify XentIT in writing of such failure, and (ii) specify in reasonable detail the nature and extent of such failure. Upon receipt of notice XentIT shall make adjustments, modifications or revisions necessary to cause such Deliverable to meet the specifications and/or other acceptance criteria mutually agreed upon by the parties, and either: (a) in the case of a non-software Deliverable, re-submit such Deliverable to Client for review; or (b) in the case of a Deliverable that comprises software, notify Client that such Deliverable is ready for re-testing. At such time as a Deliverable meets such specifications and/or other acceptance criteria, Client shall issue its acceptance of the Deliverable.

III. Billing & Payment

Unless a term is otherwise specifically established within a SOW superseding these general provisions, the following will apply.

A) Manner of Payment. XentIT shall bill Client on a monthly basis for all Software Item(s) and Support Service(s) provided under an executed SOW. Billing will be addressed to the Client, and shall be payable within 30 (thirty) days of receipt. All payments shall be in immediately-available United States funds, without deduction, setoff or counterclaim, including but not limited to any deductions for any sales, use, value-added, withholding, or other taxes and duties, including any taxes or duties imposed by any authority within or outside of the U.S., of any kind or nature.

B) Documentation. If applicable (e.g., if work is done at a Client’s location performing Support Service(s)), Client agrees to accept documentation of time worked as certified to it by XentIT employees/consultants. Client also agrees to accept commercially reasonable documentation for any expenses incurred (e.g., travel or lodging) which may include credit card statements in lieu of actual receipts, unless challenged by Client.

C) Disputes. Client agrees in all instances in which it disputes any particular hourly charge or expense, that it will a) pay the full amount requested within 30 days of receipt without regard for its dispute; but then b) provide XentIT with documentation supporting any challenge to amounts within 15 days of the basis for the dispute becoming known to Client. Both parties warrant to conduct good faith investigations and conduct good faith discussions in attempting to resolve any disputes.

IV. Modifications, Changes & Delays

A) Charging. Except as may otherwise be agreed in writing, XentIT shall prepare any initial Quote or SOW for Client, based upon Client’s initially-stated requirements and discussions between the parties, and XentIT shall not be directly compensated for such efforts in preparing Quotes (i.e., draft SOW(s)). Similarly, unless the parties otherwise agree in writing, XentIT shall not be directly compensated by the Client for preparation of any subsequent addenda or modifications to a previously-executed SOW, which is prepared at the request of Client.

B) Changes & Delays.

1. Adjustment Event.The occurrence of any of the following events (each, an “Adjustment Event”) requires modification or amendment to a SOW:

a) a material deficiency in the information which Client has supplied to XentIT to develop and propose an initial SOW;
b) a failure by Client to provide XentIT necessary resources or specifications identified within a SOW, which include access to facilities, personnel, or systems by specified dates;
c) Force Majeure Events;
d) a change in applicable law affecting performance; or
e) any change affecting the Scope of an existing SOW.¹

2. Effect of Adjustment Event. Following an Adjustment Event, the parties shall promptly confer and engage in good faith discussions to modify or amend the existing SOW. If the parties do not agree to a modification or amendment to address the Adjustment Event, then to the extent that any delays or deficiencies in performance of the existing SOW occur as a result of the Adjustment Event, the scheduled completion date for performance affected by the Adjustment Event shall be automatically extended by a corresponding period of time, and XentIT shall not incur any liability to Client with respect to such delay or deficiency. If the parties continue to not agree on a modification or amendment, XentIT shall have also have the right to unilaterally modify the scope of any SOW to encompass only those areas where the parties do agree, and to suspend performance on all other areas, so long as it acts in a commercially reasonable manner.

C) Modifications & Amendments. In the event of any proposed change, the parties will to the greatest extent practicable allow for continued performance if such has begun or is contemplated by a delivery schedule, where such would not conflict with any proposed modifications and is commercially reasonable. XentIT will prepare and provide to Client a proposed change or modification order, or new SOW, identifying the impact and setting forth any applicable adjustments in the schedule and/or payments to XentIT. Any change or modification or new SOW, if agreed to by the parties, will be reduced to writing signed by both parties.

¹ Changes to the Scope of a SOW relate to fundamental and interrelated issues that affect performance delivery schedules and price. Typical changes affecting Scope and requiring modification or issuance of a new SOW include: i) addition of new tasks, activities, and/or deliverables; ii) any staffing change requests; iii) any rework of completed and accepted tasks and deliverables based upon new requirements; iv) changes in assumptions set forth in the Work Order; or v) delays caused by Client modification to the deliverables’ acceptance criteria.

V. Warranties & Representations

XentIT provides no warranties for any Software Item procured from any third party, apart from explicit requirements contained within a SOW relating to licensing or installation. XentIT warrants that Support Services will be performed in a good and workmanlike manner and in accordance with industry standards. XentIT further warrants that any Deliverables developed by XentIT do not contain any viruses, malicious code, trojan horse, worm, time bomb, self-help code, back door or other software code or programming routine designed to: (i) damage, destroy or alter any software or hardware; (ii) reveal, damage, destroy or alter any data in an unauthorized manner; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software or hardware. Except as expressly provided in the foregoing sentences, XentIT disclaims all other express and implied warranties, including but not limited to any implied warranties of merchantability, and fitness for a particular purpose.

VI. Data Rights & Ownership

A) Third Party Software. To the extent XentIT procures a license and or installs any third party software for Client, XentIT disclaims any warranties of any such software, and neither owns nor grants to Client any interest in any data rights or use of such software, beyond any licensing agreement covering its use by which Client agrees to abide. Any and all third party works and products (other than commercial of the shelf software or materials provided by Client) to be provided under a SOW or otherwise embedded within a Deliverable, shall be listed in the applicable SOW along with the applicable license and costs, if any.

B) XentIT Developed Material Under A SOW. All software (in source code and object code form), reports, designs, charts, plans, specifications, data, documentation and information, in whatever form, produced or created by XentIT specifically for Client hereunder and required to be developed and delivered to Client as a Deliverable in an applicable SOW, shall be collectively deemed to be a work made for hire and owned by Client. To the extent that any such material does not qualify as a work made for hire, XentIT assigns all right, title, and interest in and to the Deliverable, including without limitation, all copyright, patent and trade secret rights therein, to Client, and XentIT will execute all documents reasonably requested by Client to effectuate such ownership. Notwithstanding the foregoing, ownership will not vest with Client with respect to a particular Deliverable until Client has paid XentIT in full for any such item or SOW.

C) Retained Materials: XentIT Tools & Generic Components. All rights to other XentIT Tools, Generic Components, and Other Materials used by XentIT but not identified as a Deliverable developed in an applicable SOW for Client, shall remain fully and completely solely with XentIT. XentIT will (i) retain all right, title and interest in and to all know-how, intellectual property, methodologies, processes, technologies, algorithms, software or development tools, data, modules, components, designs, utilities, subsets, objects, program listings, models, programs, systems, analysis frameworks, leading practices, and specifications used to perform any Support Services that are owned or licensed by XentIT (collectively, the “Tools”), and (ii) retain all right, title and interest in and to all repeatable and reusable processes, reports, designs, charts, plans, specifications, documentation, forms, templates or output that are developed, created, acquired or otherwise used by or on behalf of XentIT in the course of performing the Services, except to the extent incorporating any proprietary information, Client Confidential Information or Client data (collectively, the “Generic Components”). Tools and Generic Components shall also include any modifications or enhancements thereto developed in the course of performing Support Services. XentIT’s retention of rights shall apply notwithstanding any requirement within a SOW that XentIT make use of any such Tool or Generic Component in performance.

D) License. To the extent that any XentIT Tools or Generic Components are integrated into any Deliverables, XentIT hereby grants to Client (and its affiliates) a royalty-free, perpetual, irrevocable, nontransferable, nonexclusive license to copy, use and create derivative works of any such Tools and Generic Components as integrated into such Deliverables in connection with Client’s use of the Services, Deliverables, or tangible components thereof. Client may not market or resell the Deliverables to the extent that the Deliverables incorporate the Tools or Generic Components.

E) Residual Knowledge. Notwithstanding anything to the contrary contained herein, XentIT retains all rights to the knowledge, experience and know-how (including processes, ideas, concepts and techniques) acquired in the course of performance and retained in the unaided memories of XentIT’s employees, subcontractors, or agents, and which are not Client’s Confidential Information.

VII. Confidentiality

A) Protection of Confidential Information. The parties acknowledge that each will be exposed to certain information that is not generally known to the public which would be considered confidential or proprietary by the other party (“Confidential Information”). Each Receiving Party shall take reasonable precautions, no less rigorous than Receiving Party takes with respect to its own confidential information, to prevent unauthorized or inadvertent disclosure of the confidential information of Disclosing Party. Each Receiving Party will protect such confidential and proprietary information, whether written or oral, as the confidential information and proprietary property of the Disclosing Party, in accordance with all applicable laws. No party will disclose any such information to any person, firm, organization or employee who is not, of necessity, authorized to review such information. Such confidential and proprietary information will not be duplicated or created, in whole or in part, by Receiving Party, without the express written consent of the Disclosing Party. Upon termination of this Agreement or any particular SOW under which Confidential Information was disclosed, Receiving Party shall return all copies of Confidential Information to Disclosing Party or certify, in writing, the destruction thereof. It is understood that the term “Confidential Information” does not include information which:

  1. is now or hereafter in the public domain through no fault of the Receiving Party;
  2. prior to disclosure hereunder, is properly within the rightful possession of the Receiving Party;
  3. is lawfully received from a third party with no restriction on further disclosure; or
  4. is obligated to be produced under applicable law or order of a court of competent jurisdiction.

B) Protection of Personal Information. The parties acknowledge that XentIT may come into contact with actual data while performing a Support Service that contains Personal Information of third parties, within the general control of Client. All Personal Information so accessed shall be held in strict confidence. XentIT agrees not to use such Personal Information to its own commercial advantage or in any other manner except in the performance of any SOW for Client, and shall not copy or otherwise access any such Personal Information outside of systems managed by Client. In the event of any breach or unauthorized release of Personal Information, XentIT shall assume no responsibility or liability outside of any willful misconduct or gross negligence.

VIII. Limitations on Liability

A) No Liability For Non-Direct Damages. In no event shall either party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, reputational harm, loss of revenue, loss of data, or loss of use, incurred by the other party or any third party, whether in an action in contract or tort (including, without limitation, negligence), even if such party has been advised of the possibility of such damages.

B) Overall Cap On All Damages. Total liability for any service provided hereunder is limited in all cases and in the aggregate to the amount of fees actually paid by Client to XentIT for any corresponding service during the twelve month preceding the date of the event that is the basis for the claim.

C) Exceptions. The limitations set forth in this section shall not apply to personal injury or damage to tangible property caused by the willful misconduct or gross negligence of either Party.

IX. Indemnification

A) XentIT shall indemnify the Client, its officers and employees from and against damages, liabilities, losses, costs, and expenses, against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of XentIT or of any of its agents, subcontractors, or employees, in performance of this Agreement or any SOW. XentIT’s obligations set forth in this section above do not apply to the extent that an Indemnified Claim arises out of: (i) Client’s breach of this Agreement; (ii) revisions to any Deliverable made by Client after formal delivery by XentIT and Client’s acceptance; (iii) Client’s failure to incorporate updates or upgrades that would have avoided the claim; (iv) XentIT’s design or modification of the Deliverable in compliance with specifications provided by Client; or (v) use of the Deliverable in combination with hardware or software either not provided by XentIT, or outside of specifications provided to XentIT in a SOW prior to its development or installation.

B) The Client shall indemnify XentIT, its officers and employees from and against damages, liabilities, losses, costs, and expenses, against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging (a) Client’s alleged or actual use of, misuse of, or failure to use a Deliverable; or (b) injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Client or of any of its agents, subcontractors, or employees. Indemnified Claims listed in this section include, without limitation: (i) claims brought by Client’s employees, contractors, or other users (collectively, “Users”); and (ii) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information. Client’s obligations set forth in this section above do not apply to the extent that an Indemnified Claim arises out of: (i) XentIT’s breach of this Agreement; or (ii) unauthorized revisions to any Deliverable made by XentIT after formal delivery by XentIT and Client’s acceptance.

X. Miscellaneous Terms

Without regard for heading, organization, or order, the following clauses are of full effect as all other clauses and provisions contained within these Conditions, and are hereunder listed as “miscellaneous” only for organizational purposes.

A) Entire Agreement; Amendment. These Conditions and the attached exhibits including an executed SOW constitute the entire contract between the Parties with respect to the subject matter hereof and supersede any prior agreements between the Parties. These Conditions and any obligations contained within an executed SOW may not be amended, nor any obligation hereunder waived, except by an agreement in writing executed by, in the case of an amendment, each of the parties hereto, and, in the case of a waiver, by the party waiving performance. There are no promises, terms, conditions, or obligations of the Parties, other than those contained herein or incorporated herein by reference.

B) No Waiver. The failure or delay by a party to enforce any provision will not in any way be construed as a waiver of any such provision or prevent that party from thereafter enforcing any other provision. The rights granted both parties hereunder are cumulative and will not constitute a waiver of either party’s right to assert any other legal remedy available to it.

C) Non-Solicitation. Both parties agree not to hire or solicit work directly or indirectly with the other’s employees/sub-contractors for a period of two (2) years from the completion of any SOW unless mutually agreed to in writing by both parties.

D) Insurance. XentIT shall, at its expense, obtain and maintain in force at all times during the term any SOW with Client, sufficient insurance as may be required by law, and to protect Client and XentIT from third party claims arising out of or connected with the performance of the Services hereunder. XentIT will maintain throughout the term of the Agreement the following: (i) Worker’s Compensation and Employer’s Liability Insurance as required by applicable law; (ii) Commercial General Liability Insurance (bodily injury and property damage) with products liability/completed operations and contractual liability insurance to cover liability assumed under these Conditions; (iii) Automobile Bodily Injury and Property Damage Liability Insurance covering owned, non-owned, and hired automobiles. The minimum required of such insurance shall not be less than $1,000,000 combined single limit per occurrence. In addition, XentIT will maintain throughout the term of the Agreement an Errors and Omissions Liability policy with a minimum limit of $2,000,000.

E) Independent Contractor Status. In the performance of services under this these Conditions, XentIT will be considered as an independent contractor; neither XentIT nor any of its employees or subcontractors will be considered as employees of Client in any respect. XentIT will be given general directions and instructions regarding the services that XentIT has agreed to render; however, the direct supervision of XentIT’s employees will be the responsibility and obligation of XentIT. Nothing contained herein or relating to the subject matter hereof shall be construed to create an employment, principal-agent, or fiduciary relationship, or a partnership or joint venture, or any relationship other than a contractual relationship, between Client and XentIT, and neither party shall have the right, power or authority to obligate or bind the other in any manner whatsoever absent written consent. XentIT does not undertake to perform any obligation of Client, whether regulatory or contractual, or to assume any responsibility for Client’s business or operations.

F) Severability. Should any provision of these Conditions or any executed SOW be found to be illegal or unenforceable, the other provisions will nevertheless remain effective and will remain enforceable to the greatest extent permitted by law.

G) Governing Law. These Conditions and any executed SOW are governed by the internal substantive laws, but not the choice of law rules, of Maryland.

H) Choice of Venue & Waiver of Personal Jurisdiction. Any legal action, suit or proceeding brought by a party that in any way arises out of these Conditions and any executed SOW (“Proceeding”) must be litigated exclusively in either the Circuit Court for Anne Arundel County, Maryland, or the United States District Court for Maryland (the “Identified Courts”). Each party hereby irrevocably and unconditionally: (i) submits to the jurisdiction of the Identified Courts for any Proceeding; (ii) shall not commence any Proceeding, except in the Identified Courts; (iii) waives, and shall not plead or make, any objection to the venue of any Proceeding in the Identified Courts; (iv) waives, and shall not plead or make, any claim that any Proceeding brought in the Identified Courts has been brought in an improper or otherwise inconvenient forum; and (v) waives, and shall not plead or make, any claim that the Identified Courts lack personal jurisdiction over it.

I) Attorney’s Fees. In the event of any dispute between the Parties concerning the terms and provisions of these Conditions and any executed SOW, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorney’s fees.

J) Surviving Provisions. Provisions addressing compensation, confidentiality, and indemnification, will survive indefinitely the termination or expiration of these Conditions and any executed SOW.

K) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given when delivered or mailed by first-class, registered or certified mail, postage prepaid, addressed (a) if to Client, to such address the Client shall furnish at the time of entering into a SOW; and (b) if to the Company, at its principal place of business, 2142 Priest Bridge Court Suite 9, Crofton, MD 21114.

Exhibit A: Example Quote / Statement of Work

² All pricing is based in US Dollars. Pricing is valid for no more than 30 days, unless otherwise specified. Taxes, Shipping, Handling & Transaction Fees are not included. If you are an exempt organization, please provide the certificate so we do not include the tax on the final invoice.

Client Acceptance

A signature below indicates acceptance of the terms depicted herein on this Quote, which shall constitute a binding agreement (Statement of Work) between you and XentIT dictating the purchase and use of the services and products described above.

² All pricing is based in US Dollars. Pricing is valid for no more than 30 days, unless otherwise specified. Taxes, Shipping, Handling & Transaction Fees are not included. If you are an exempt organization, please provide the certificate so we do not include the tax on the final invoice.