CISCOM SOLUTIONS, LLC

GENERAL TERMS AND CONDITIONS

Last Revised 2024.01.09

  1. Applicability

These General Terms and Conditions (these “Terms”) govern the provision of services and sale of products by CisCom Solutions, LLC, a Kentucky limited liability company (“CisCom”), to the individual or entity that has accepted a Quote (as hereinafter defined) from CisCom (“Customer”, and collectively with CisCom, the “Parties”), all in accordance with the terms and conditions contained herein.

  1. Defined Terms

Capitalized terms used herein shall have the meaning ascribed to them herein, or if not so defined, the meanings assigned to such terms in this Section 2.

“Business Day” means any day other than a Saturday, Sunday, or a Holiday.

“Business Hours” means 9:00 a.m. to 5:00 p.m. (local time in Louisville, Kentucky) on Business Days.

“Force Majeure Event” means any action or event outside of CisCom’s reasonable control, including but not limited to: hardware failure, network interruptions, actions taken by internet service providers or other third parties; power outages; acts of God; acts of civil or military authority; wars, invasions, hostilities, terrorist acts or threats; riots or other civil unrest; explosions, fires, earthquakes, storms, hurricanes, floods, or other disasters or catastrophes; epidemics or pandemics; government order, law, or action; embargoes or blockades; national or regional emergency; strikes, labor stoppages or slowdowns; industrial disturbances; inadequate transportation services, or inability or delay in obtaining Goods or supplies; and delays of manufacturers or other suppliers.

“Goods” means the merchandise and products (including hardware and software) set forth in an Order.

“Holiday” means any day on which banking institutions in the Commonwealth of Kentucky are permitted or obligated by law to be closed.

“Intellectual Property” means any and all rights created under laws governing patents, copyrights, mask works, trade secrets, trademarks, publicity rights, and any other law that gives a Person a right to control or preclude another person’s or entity’s right to use, copy, display, distribute, manufacture, sell, access or otherwise exploit works, inventions, materials, or information on the basis of the holder-of-right’s interest in such works, inventions, materials or information, and includes software and all know-how, trade secrets, copyrightable material, copyrights, copyright applications, patent applications, patentable inventions, materials, notes, designs, technical data, ideas, research, reports, documentation and other similar information relating thereto.

“MSA” means a managed services agreement entered into between the Parties.

“Non-Business Days” means a day other than a Business Day or a Holiday.

“Non-Business Hours” means all hours of a Non-Business Day.

“Person” means any natural person, corporation, limited liability company, or other legal entity.

“Priority Level” means the degree of urgency assigned to any Service Request lodged with CisCom in accordance with these Terms.

“Quote” means a written quotation from CisCom delivered to Customer for the provision of Services or Goods, and includes any Scope of Work included therein.

“Response Time” means the period of time starting upon CisCom’s receipt of notification of a Service Request according to these Terms, and ending upon CisCom’s commencement of Services for such Service Request.

“Services” means the those services to be performed by CisCom, including labor, support, advice, and consultation, set forth in an Order, including testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting, and quoting for complex items.

“Service Request” means a request for any Services submitted to CisCom from time to time in accordance with these Terms.

“Scope of Work” means a written detailed description of proposed Services and Goods included within a Quote.

  1. Procedure

Customer shall have a period of seven (7) days following receipt of a Quote from CisCom in which to accept the Quote by returning an executed copy thereof to CisCom in the manner described in Section 30.  If Customer returns an executed Quote within such period, and Customer has not changed, supplemented, or deleted any terms of such Quote (including by appending any additional terms and conditions to such Quote), then, upon receipt by CisCom, the Quote shall be converted to a purchase order (“Order”) and upon such date (the “Effective Date”) shall become subject to these Terms.  If any terms have been removed, changed, or supplemented, the Quote shall be null and void and of no further effect, notwithstanding that Customer may have returned an executed copy.  Notwithstanding the foregoing, in the event of an error or omission in any price or Goods set forth in any Quote, CisCom reserves the right to rescind the Quote, regardless of whether such Quote has been converted into an Order or whether Customer has paid any amount to CisCom thereunder.  In such event, CisCom’s only liability shall be to return to Customer any amount previous paid.

  1. Entire Agreement; Website

Entire Agreement

These Terms, the accompanying Order, any materials made available to Customer on its website at www.ciscom.com (the “Website”), and any MSA comprise the entire agreement between the parties (collectively, “Agreement”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.  In the event of any conflict between these Terms and any Order or other materials, these Terms shall govern unless the Order or Website Materials (as hereinafter defined) expressly state that the terms and conditions of such document shall control.  Notwithstanding anything herein to the contrary, if the Parties enter into an MSA, the terms and conditions of the MSA shall prevail to the extent they are inconsistent with these Terms.

These Terms prevail over and supersede any preprinted terms and conditions of any Customer-generated purchase order, request for quote, acceptance, acknowledgment, or other communication in any form, and any additional, contrary, or different terms contained in any other document or communication from Customer.  For avoidance of doubt, and without limiting anything contained in this Section 4, any attempt by Customer to modify, supplement, or otherwise alter any Quote, Order, or these Terms are deemed rejected by CisCom and will not modify these Terms or be binding on the Parties unless such terms have been fully approved in a signed writing by an authorized representatives of each Party.

Website

CisCom will make available to Customer certain materials and information related to its services and products, including the Services and Goods covered by this Agreement, on the Website (such materials, “Website Materials”).  Customer acknowledges and agrees that it is responsible for periodically (but in no event less frequently than monthly) accessing the Website to review any new or updated Website Materials.

CisCom makes no representations or warranties: (i) regarding any internet site or third-party products or services referenced on the Website; (ii) that the information on the Website is complete or correct; or (iii) that the Website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software.

  1. Term

The term of this Agreement (“Term”) shall commence on the Effective Date and, unless terminated by CisCom pursuant to Section 16, shall continue until the latest to occur of: (i) the period of time necessary for CisCom to provide the Services and Goods specified in an Order; (ii) the date on which all obligations of Customer under such Order, including payment obligations of Customer to CisCom, have been fulfilled; (iii) the period of time set forth in any Order; or (iv) if any Third-Party Offering is involved, the period of time required by such Third-Party Offering.

  1. Services; Response Times

During the Term, CisCom shall provide and sell to Customer, and Customer shall purchase from CisCom, the Services specified in any Order, in each case subject to these Terms.

Service Requests

Customer agrees that Service Requests should be lodged with CisCom using only the following methods:

To assist CisCom in resolving the underlying issue, Customer should include a short description of the reason for making the Service Request, and include, where possible, screenshots of any error messages.  Service Requests lodged by phone or e-mail must include Customer’s name and contact information.

Service Requests made during Non-Business Hours must be lodged by phone.

Customer acknowledges and agrees that Service Requests should not be lodged directly with technicians, and that CisCom disclaims any obligation to respond to such Service Requests.

Priority Level and Response Times

Upon receipt of a Service Request lodged in accordance with these Terms, CisCom will assign one of the following Priority Levels to such Service Request, in each case in CisCom’s sole discretion:

  • “Emergency-Level” Service Requests include, but are not limited to, any interruption that makes a critical functionality inaccessible, or a complete network interruption that causes a severe impact on services availability.
  • “High-Level” Service Requests include, but are not limited to, off-line servers, lack of internet access, or lack of computer connectivity.
  • “Medium-Level” Service Requests include, but are not limited to, computer viruses, inability to print documents, or failure to receive e-mails.
  • “Low-Level” Service Requests include, but are not limited to, failures of spam filters and slow or unresponsive computers.

Once a Priority Level has been assigned, CisCom will commence the Services responsive to such Service Request according to the timeframe set forth on the Website.  Customer acknowledges that the timeframe set forth on the Website refers to the period in which CisCom will commence Services, and not the period in which CisCom will complete Services.

  1. Goods; Shipping Terms

During the Term, CisCom shall sell to Customer, and Customer shall purchase from CisCom, the Goods specified in any Order, in each case subject to these Terms.

Delivery of Goods

  • CisCom makes no guaranty or warranty on the price or availability of any Goods. If CisCom is unable to supply the Goods set forth in an Order, CisCom may supply alternate Goods of equal or superior quality.
  • CisCom will make reasonable efforts to supply the Goods in accordance with an Order, but may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Effective Date but prior to delivery.
  • Unless otherwise specified in an Order or in a signed writing of Customer delivered to CisCom prior to shipment, CisCom shall arrange for delivery of Goods to the address shown on the applicable Order using CisCom’s standard methods for packing and shipping. Freight charges will be added to the Order, and any included delivery charges are estimates only.
  • CisCom will use all reasonable methods to dispatch Goods within a reasonable time according to any date set forth in an Order, but any such dates shall be estimates only. CisCom shall not be liable for any delays beyond our reasonable control, whether such delay is related to availability of Goods or otherwise.

Title and Risk of Loss

Title to Goods and risk of loss or damage during shipment pass from CisCom to Customer upon delivery to the carrier (F.O.B. Origin, freight prepaid and added).

Security Interest

CisCom has no obligation to deliver any Goods until payment in full has been received.  However, if any Goods are delivered to Customer prior to CisCom’s receipt of payment in full, as collateral security for such payment, Customer hereby grants to CisCom a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.  The security interest granted under this provision constitutes a purchase money security interest under the Kentucky Uniform Commercial Code.  Customer grants CisCom the right to sign and file, on behalf of Customer, any UCC financing statements or other documents that CisCom may deem advisable in order to perfect its security interest in such Goods.

Inspection

Customer shall inspect all Goods promptly upon their delivery, but in no case later than seven (7) days after delivery (such period, the “Inspection Period”).  If Goods need to be returned for any reason, written notice must be received by CisCom within the Inspection Period.

Customer acknowledges and agrees that (i) any claim for damage, loss, or delay relating to the shipment of Goods must be made against the carrier, and (ii) CisCom's responsibility for such damage, loss, or delay ceases upon delivery of the Goods to the carrier for shipment by the carrier.

Returns 

Manufacturer restrictions apply to certain Goods, as detailed below, and as updated from time to time.  Customer may obtain additional details and any applicable updates on the Website and may obtain manufacturer contact information by contacting CisCom Customer Service.

Special Orders.  CisCom does not carry hardware or software in inventory and all Goods sold are considered specially ordered.  As such, these products may be non-returnable or may have unique return restrictions provided at the time of sale.  Customer should contact its CisCom Account Manager or CisCom Customer Service prior to attempting to return any specially ordered hardware or software.

Defective Product Returns.  Customer may return most defective Goods directly to CisCom within seven (7) days after delivery, and will receive, at CisCom’s option, credit, replacement, exchange, or repair.  If Customer does not return such Goods to CisCom within seven (7) days after delivery, only the manufacturer warranty, if any, applies.

  1. Third-Party Offerings

In providing Services and Products under this Agreement, CisCom may use, and may provide Customer access to, services, software, documents, data, content, products, equipment, or components that are not proprietary to CisCom (collectively, “Third-Party Offerings”).  All Third-Party Offerings also include the terms and conditions of the applicable agreements with the providers (“Third-Party Providers”) thereof (collectively, “Third-Party Terms”), which are made available to Customer on the Website.  Customer shall comply with all such Third-Party Terms and any action or inaction by Customer that causes a breach by CisCom of any such Third-Party Terms will be deemed a breach of this Agreement by Customer.  For the avoidance of doubt, because CisCom is extending Third-Party Offerings to Customer through the Third-Party Terms, any rights or obligations of Customer under such Third-Party Terms, if any, are by and through CisCom as the party thereto, and Customer acknowledges and agrees that Customer is not a third-party beneficiary of any such Third-Party Terms unless expressly provided therein.

CisCom may, at its option, suspend, terminate, or disable Customer’s access to any Third-Party Offerings (and CisCom’s provision of any Services or Products related thereto) if: (i) a Third-Party Provider discontinues a Third-Party Offering; or (ii) Customer takes, or omits to take, any action that could cause CisCom to breach any payment or other provision of any applicable Third-Party Terms, including Customer’s non-payment of any fees pertaining to Customer’s use or receipt of any Third-Party Offerings.  Customer acknowledges and agrees that CisCom has no obligation to Customer to pay any Third-Party Provider unless and until Customer makes timely payment to CisCom of any fees and other amounts pertaining to the applicable Third-Party Offerings provided by such Third-Party Provider.

  1. Customer’s Obligations

Customer acknowledges and agrees that, in addition to its other obligations under these Terms, during the Term, it shall strictly comply with the obligations of Customer set forth in this Section 9.

Admins and Authorized Users

  • As soon as possible after the Effective Date, Customer shall provide CisCom with the name and contact information of an individual who will serve as the emergency contact for Customer (the “Emergency Contact”), as well as the contact information of an individual who will be CisCom’s primary contact with Customer, and a second individual to be CisCom’s secondary contact with Customer (the “Admins”). The Admins shall be the points of contact for day-to-day consultation, troubleshooting, and decision-making with respect to the Services and Goods provided by CisCom. Customer shall vest each of the Admins with the requisite authority, skill, experience, and other qualifications to perform in such capacity.
  • Within 30 days after the Effective Date, Customer shall provide CisCom with the names of each of Customer’s employees, contractors, and other persons who will use the Services or Goods provided by CisCom (collectively, the “Authorized Users”) and identification of the devices associated with such Authorized Users (collectively, the “Authorized Devices”).
  • Within 5 days after adding any Authorized User or any Authorized Device, Customer shall provide notice to CisCom of the name of such additional Authorized User and identification of such additional Authorized Device.
  • Customer is responsible for the use of the Services or Goods by the Authorized Users and any other Person under the control or supervision of Customer, and shall take commercially reasonable efforts to safeguard Authorized Users’ credentials for access to, or use of, the Services or Goods.
  • Customer shall take all measures necessary to prevent unauthorized access, use, copying, or alterations to the Services or Goods by its Authorized Users and any third party, and shall notify CisCom promptly if Customer learns of any unauthorized access, use, copying, or alteration of any of the Services or Goods by any of its Authorized Users or by any third party.

Hardware and Software

Customer shall maintain at its own expense: (i) the minimum standard of hardware and software identified at www.ciscom.com/standards (which may be updated by CisCom from time to time); (ii) all other hardware and software that are required for CisCom to provide the Services or Goods; and (iii) all equipment necessary to establish a connection with the Internet, and a connection to the Internet (except to the extent provided in an Order.  All hardware referred to above shall be under warranty during the Term.  Customer acknowledges responsibility for backing up data in order to mitigate potential loss of programs and data.

Access to Systems, Sites, and People

Customer shall, upon request, provide CisCom with access to equipment, sites, and people, as well any information (including user and administrative passwords) as required for CisCom to provide the Services or Goods.

Customer shall allow CisCom to install software on all equipment in order to access all systems at any time. This software allows CisCom to view system statuses, send monitoring information, see users’ desktops and control Customer’s PC’s. This may require that devices are left on overnight or weekends.

At times CisCom may need to contact Customer’s third-party providers on your behalf, such as an internet provider.  Some of these providers may require authorization to deal with them on Customer’s behalf. It is Customer’s responsibility to ensure that CisCom is able to deal freely with these providers.

Insurance

During the Term, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes commercial general liability in a sum no less than $1,000,000, and cyber security insurance with financially sound and reputable insurers.  Upon CisCom’s request, Customer shall provide CisCom with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms.  The certificate of insurance shall name CisCom as an additional insured.  Customer shall provide CisCom with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy.  Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against CisCom’s insurers and CisCom.

Compliance with Contracts

Customer shall review and comply with all applicable covenants and conditions contained in any agreements, licenses, or other materials related to the Services or Goods, or that CisCom may deliver to Customer, including any software licenses, terms of service, or Third-Party Terms.  Customer specifically acknowledges and agrees that, prior to using and in connection with the use of any Third-Party Offerings, Customer shall review the applicable Third-Party Terms and shall abide by the rules set forth therein.

Payments under this Agreement

Customer acknowledges and agrees that, where CisCom provides Services with a view to achieving certain outcomes of Customer (whether expressed, agreed or otherwise), Customer remains liable for paying for such Services in accordance with these Terms, regardless of whether CisCom achieves any such outcomes, provided that CisCom has acted in good faith and have made all reasonable endeavors to achieve those outcomes.

  1. Customer Data

Ownership during Term

Customer represents and warrants to CisCom that, during the Term, Customer owns or otherwise has and will have the necessary rights and consents in and relating to all data provided by Customer or its designees in connection with Customer’s receipt of Goods and Services under this Agreement (collectively, “Customer Data”) so that, as received by CisCom and used by CisCom in accordance with this Agreement, the Customer Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, any privacy or other rights of any third party, or violate any applicable law or ethical rule.

Post-Term Obligations

To the extent any Customer Data remains in CisCom’s possession or control upon the expiration or earlier termination of the Term (such date, the “Expiration Date”), CisCom shall use commercially reasonable efforts to preserve Customer Data for a period of ten (10) Business Days (such period, the “Holdover Period”); provided, however, that CisCom shall have no obligations with respect to the use, storage, or preservation of Customer Data during the Holdover Period, and CisCom shall not be liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data during the Holdover Period.  Upon Customer’s written request received by CisCom not later than five (5) Business Days following the Expiration Date, CisCom shall return, or to the extent not in CisCom’s possession or custody shall reasonably endeavor to cause to be returned, to Customer or its designee, all Customer Data in an electronic format that is readable and reasonably usable by Customer.  All costs associated with preservation of Customer Data during the Holdover Period, as well as the costs of CisCom's labor and expenses for third-party services, related to the return of Customer Data shall be the responsibility of Customer and paid to CisCom by Customer (collectively, the “Return Costs”).

Customer acknowledges and agrees that CisCom may, as a condition to any obligation of CisCom to return such Customer Data, require payment of: (i) an amount equal to a good-faith estimate of the Return Costs; and (ii) all fees, expenses, and other amounts due and owing under this Agreement.

Customer further acknowledges and agrees that Customer’s obligations to deliver the written request and pay all amounts described in this Section 8 are of the essence, and that CisCom reserves the right to delete or cause the deletion of any Customer Data if Customer fails to strictly comply with such obligations.

  1. Prices

Services

Applicable Rates

Except as otherwise set forth in an Order: (a) all Services performed during Business Hours will be incurred at the rate applicable to such Services (the “Base Rate”) as set forth on the Website at www.ciscom.com/rates (the “Rate Schedule”); (b) all Services performed during Non-Business Hours will be incurred at 1.5 times the applicable Base Rate; and (c) all Services performed on Holidays will be incurred at 2.0 times applicable Base Rate.  CisCom reserves the right to modify the Rate Schedule and the Base Rates therein from time to time during the Term, provided that such modification does not result in an increase of the Base Rates by more than ten (10) percent (10%) above the Base Rate applicable immediately prior to such increase.

All on-site support are billed at a minimum of 1 hour. Remote support are billed in thirty (30) minute increments.

Pre-Paid Blocks

Full payment must be made in advance for all pre-paid blocks of Service at the applicable Base Rate.  Services included in a pre-paid block of Services are calculated in accordance with the applicable minimum time periods (“Service Period”) and increments set out in the Rate Schedule and are only provided during the applicable Service Period.  Customer may not roll over any unused Services in a particular Service Period to any other Service Period, nor are such unused Services subject to refund or reimbursement.

Related Expenses

In connection with providing the Services, CisCom may also incur out-of-pocket expenses, including travel and transportation costs, accommodations, meal allowances, tolls, and parking fees.  Where appropriate, CisCom will obtain prior written authorization before such expenses are incurred.

Goods

Except as otherwise set forth in an Order: (a) all Goods will be billed as quoted in an Order [or with customary markup]; (b) the quoted prices for Goods do not include currency exchange fees, sales tax, use tax, value added tax or the like, or shipping, the payment of which shall remain the responsibility of Customer.

CisCom reserves the right, without prior notice to Customer, to increase the price for Goods included in an Order in the event of a price increase by CisCom’s supplier, including as a result of a tariff or other cost increase to CisCom for such Goods, or any change in subscription, license, or other fees of any Third-Party Provider.  Customer agrees that it is responsible for the increased costs associated with any such change in the price for Goods, including as a result of any change in the subscription, license, or other fees of a Third-Party Provider.

  1. Payment Terms

Customer shall pay all invoiced amounts due to CisCom within ten (10) days after the date of CisCom’s invoice, unless a later period for payment is permitted under the terms of an Order.  All payments due hereunder may be made to CisCom in U.S. dollars and by wire transfer, credit card, check, or on the Website.

CisCom may require and invoice Customer for deposits prior to ordering Goods or supplying Services.  Customer may not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with CisCom.

There is a $35.00 charge on returned checks.  Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Customer shall reimburse CisCom for all costs incurred in collecting any late payments, including reasonable attorneys’ fees.  In addition to all other remedies available under these Terms or at law, CisCom may suspend the delivery of any Goods or performance of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for sixty (60) days following written notice thereof.

  1. Limited Warranty; Disclaimer Of All Other Warranties

CisCom warrants to Customer that the Services to be delivered or rendered under this Agreement will be of the kind and quality designated in an Order and will be performed by qualified personnel.  CisCom provides no guarantees or warranties, express or implied, as to systems availability and functionality during any phase of its support services hereunder (including the functionality of its website), and makes no guarantees or warranties, express or implied, regarding the ability to resolve computer-related problems, or to recover or to avoid losing data (including Customer Data).  CisCom makes no other warranties, whether written, oral, express or implied, and disclaims all implied warranties including anY warranty of fitness for a particular purpose or merchantability.

All Goods sold by CisCom hereunder carry only the manufacturer's warranty, if any, unless otherwise stated. CisCom’s sole obligation for Goods shall be to reasonably assist Customer with claims against the manufacturer under any manufacturer's warranty. CisCom disclaims all liability with respect to Goods or for any delay or failure in the honoring of any warranty, including any indirect, incidental, or consequential damages which may arise.  CisCom accepts defective goods returned to CisCom pursuant to any warranties only as manufacturer's authorized dealer.  The manufacturer’s warranties are in lieu of, and Customer waives, all other warranties. There are no other warranties, express or implied, and all implied warranties, including those of merchantability or fitness for a particular purpose, are disclaimed.

In addition, and without limiting the foregoing, CisCom makes no warranty of any kind that the Services or Goods provided under this Agreement, or results of the use thereof, will meet Customer’s or any third party’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error-free.  All Third-Party Offerings are provided by CisCom to Customer “AS IS” and any representation or warranty of or concerning any Third-Party Offerings is strictly between Customer and the Third-Party Provider; provided, however, CisCom hereby assigns CisCom’s right in and to any warranties given by Third-Party Providers to Customer to the extent CisCom may do so under the applicable Third-Party Terms, and Customer agrees such Third-Party Providers shall be solely responsible for any warranty claims by Customer relating to the applicable Third-Party Offerings.

  1. Work Disclaimer

CisCom does not and cannot warrant any software or the loading of data onto Customer’s systems. Consequently, CisCom is not liable for any time loss, data loss, or any other damages that Customer or others may claim or suffer because of, problems with any of Customer’s software, or the work performed hereunder or loading data onto or off Customer’s systems.  Customer acknowledges and agrees that, prior to commencement of any Services, Customer shall: (i) back up all software and data on workstations and servers; and (ii) arrange for CisCom’s technicians to have access to Customer’s business and its computers and peripherals to be serviced.  CisCom reserves the right to refrain from providing any or all Services if dangerous or unhealthy conditions are present or if technical conditions or Customer requirements are unusual or extensive, or if CisCom’s ability to perform any Services is impaired by circumstances beyond CisCom’s control. Customer agrees that any timelines provided in an Order with respect to CisCom’s provision or delivery of Services or Products are estimates only, and that CisCom will use commercially reasonable efforts to provide or render the applicable Services or Products within such timelines, but that failure to strictly adhere to any such timelines shall not be deemed a breach by CisCom.

  1. Limitation Of Liability

Under no circumstances shall CisCom be liable to Customer or any other party for any indirect, special, punitive, or consequential damages, either in contract or tort, including any expenses, costs, lost profits, lost savings or earnings, lost or corrupted data (including Customer Data), or other liability, regardless of whether the possibility of such damages has been disclosed to CisCom by Customer in advance or could have been reasonably foreseen by CisCom, arising out of or related to the services provided hereunder or out of the installation, de-installation, use of, or inability to use computer equipment, software, hardware, peripherals, or the network as a result of any Services provided hereunder.

If any liability of CisCom relates to a Third-Party Offering and the applicable Third-Party Terms  to which the alleged liability relates sets forth any limit of liability in favor of such Third-Party Provider, such limit shall control in all respects with respect to CisCom’s liability, if any, to Customer.

  1. Termination

Termination

In addition to any remedies that may be provided under these Terms, CisCom may terminate this Agreement (or the provision of any Services or Goods under any Order) upon written notice to Customer: (i) immediately if Customer fails to timely pay fees or any other amounts due under this Agreement (“Payment Failure”) or if Customer causes CisCom to breach any Third-Party Terms; (ii) if Customer breaches any covenant, agreement, term, or provision of this Agreement (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Customer within 30 days after Customer’s receipt of written notice of such breach; (iii) immediately if Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (iv) upon 30 days’ written notice to Customer for CisCom's business convenience.

Effect

If this Agreement is terminated for any reason before CisCom has completed provision of the Services, or before Customer has paid for any Goods, in addition to any other rights and remedies of CisCom, Customer shall pay CisCom all accrued but unpaid fees, taxes, authorized expenses, and other amounts payable hereunder (it being hereby expressly agreed by Customer that for Services or Goods provided to Customer by CisCom on a monthly or “subscription” basis, CisCom may charge, and Customer shall pay, all accrued but unpaid subscription or similar fees through the date of termination and unless terminated by CisCom pursuant to Section 12(iii), all monthly, subscription or similar fees through the remaining term of CisCom’s agreement with Customer or the applicable Third-Party Provider).  In addition, Customer shall pay CisCom the price of any ordered Goods.

Upon any termination of this Agreement, if Customer is in possession of any Goods, including software or hardware provided by CisCom and not owned by Customer, or any Third-Party Offering, Customer shall promptly discontinue all use thereof and promptly return such to CisCom f.o.b. CisCom's place of business, at Customer's expense. In addition, CisCom shall have the right to disable, remove, or otherwise terminate Customer's use of such items and Customer hereby grants CisCom and its designees the right to access and enter any premises, systems, or other property necessary to effect any such disabling, removal, or termination of use, and Customer agrees to cooperate fully with CisCom in connection therewith and pay all costs of CisCom and its designees, including labor and third-party services related thereto. Customer shall indemnify and hold harmless CisCom and its designees from any and all claims, liability, loss, and expense occasioned by Customer's failure to abide with any of the foregoing, and any such disabling, removal, termination, access, and entry.

Customer understands and acknowledges that: (a) upon any termination of this Agreement, certain Customer Data, passwords, backup material, and other related documentation will become inaccessible; and (b) CisCom shall have no liability to Customer with respect to the loss of any such Customer Data, passwords, backup material, or other related documentation unless Customer has notified CisCom in writing that Customer desires to engage CisCom to maintain or retrieve any of the foregoing (the “Post-Termination Retrieval Services”).  For avoidance of doubt, Customer agrees that the Post-Termination Retrieval Services will be incurred at the applicable Base Rate and that Customer shall be responsible for such costs as well as the costs of any Third-Party Provider in providing such services.

  1. Waiver

The failure of CisCom to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of its right to subsequently enforce and compel strict compliance with every provision of this Agreement.

  1. Confidential Information

Neither Party shall disclose to any other individual, legal entity, governmental authority, or other Person or third party, any confidential information of the other Party (unless required by law or unless required by CisCom to enforce it rights under this Agreement).  Confidential information includes information which relates to research, development, trade secrets, or business affairs, but does not include information which is generally known or easily ascertainable by nonparties of ordinary skill in computer design, programming, networking, information technology, or the specific business interests of either Party.  Each Party shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such confidential information in any form, to any Person, or permit any of its employees, agents, or representatives to do so for any purpose except unless permitted in writing by the disclosing Party or as required by applicable law.

Customer acknowledges and agrees that any information related to CisCom’s consulting techniques, proposals, Goods and Services, including the prices that CisCom charges to Customer for any Services or Goods under this Agreement, all constitute valuable assets of, and confidential and/or proprietary information to CisCom and are subject to this Section 18.

CisCom acknowledges that while providing Services to Customer, we may learn certain non-public personal and otherwise confidential information relating to Customer, including customers, consumers or employees.  CisCom shall regard all information we receive which in any way relates or pertains to Customer, including customers, consumers or employees as confidential.

Customer warrants that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by Customer to CisCom belongs to Customer.  In the event of any breach of this warranty, Customer will pay all sums due to CisCom as if such warranty had not been breached (and regardless of any non-performance of any obligation by CisCom on account of or in connection with the breach of such warranty). Customer indemnifies and holds us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by Customer.

  1. Intellectual Property; Ownership

Customer acknowledges and agrees that CisCom owns or that applicable Third-Party Providers own, all right, title, and interest in and to the Goods provided hereunder (including Third-Party Offerings) and all servers, computing equipment, and other hardware (excluding Goods specified on the face of an Order for which CisCom will convey title to Customer), and all IP related to any of the foregoing (collectively, the “IP and Materials”), and that Customer is granted only a limited right to use the IP and Materials in connection with Customer’s receipt of the Services or Goods under this Agreement.  Customer shall not, directly or indirectly: (i) attempt to or actually reverse-assemble, reverse-engineer, reverse-compile, modify, or otherwise adapt or translate any of IP and Materials; (ii) create derivative works using any of the IP and Materials; (iii) copy, transmit, distribute, or grant access to any of the IP and Materials to any third party or onto computing equipment that is neither owned nor leased by, nor under the control of, Customer; or (iv) use any of the IP and Materials in violation of any applicable law.

Customer acknowledges and agrees that CisCom will retain sole ownership of any inventions, custom software, and any other Intellectual Property resulting from the work performed under this Agreement, and that no ownership is transferred to Customer by this Agreement, or otherwise.  Customer hereby assigns all rights therein and thereto to CisCom.  CisCom shall also retain ownership of any modifications, or other derivative works prepared by or for Customer, subject to CisCom’s ownership of the Intellectual Property or invention.  Unless specifically identified and agreed to by CisCom in writing in advance of commencement of the Services as property of Customer, no property shall be deemed “work for hire” or otherwise owned by Customer.  Customer agrees to execute any further assignments or documents requested by CisCom related to ownership.

  1. Force Majeure

Customer acknowledges and agrees that CisCom shall not be responsible for any failures or delays in performing Services or providing Goods which are caused by or arise from a Force Majeure Event.  If CisCom’s ability to render any Services or supply any Goods is impaired by a Force Majeure Event, CisCom may elect, in its sole discretion, but upon written notice to Customer, cease to render any Services or supply any Goods.  In such event, Customer acknowledges and agrees that CisCom’s sole obligation shall be to refund Customer for any amount paid for any Goods that have not been delivered to Customer as of the date of such written notice.

  1. Indemnification

Customer shall indemnify and hold CisCom and its affiliates, and its and their officers, directors, managers, shareholders, and members (collectively, “CisCom Parties”), harmless from and against any claim, loss, damage, expense or liability (including reasonable attorneys' fees and costs) that may result with respect to any CisCom Parties in whole or in part, from:

  • any infringement or any claim of infringement, of any patent, trademark, copyright, trade secret, or negligence arising from any of the text, graphics, and photographs provided by Customer;
  • any claim by a third party regarding any services or products sold or otherwise distributed by Customer, its employees, representatives, or agents;
  • any claim, suit, penalty, tax, or tariff arising from Customer’s use of the Goods or receipt of the Services;
  • the breach by Customer of any of its representations, warranties, covenants, or other obligations under this Agreement;
  • the violation of any law by Customer or any of its representatives;
  • any action or inaction of Customer that causes a breach by CisCom of any Third-Party Terms;
  • any installation of software by CisCom where Customer is not authorized to use such software;
  • any provision of Services that involves tests, troubleshooting, advice, or recommendations that may prove incorrect or inappropriate,
  • any claim by Customer or a third party for indirect or consequential losses or expenses (including loss of turnover, profits, business, or goodwill);
  • any claim by Customer or a third party relating to a failure of CisCom to meet any delivery date or related to CisCom’s cancellation or suspension of the supply of Goods or Services for failure to pay any amount due under this Agreement;
  • any problem, defect, or malfunction associated with any software or services supplied by any third party;
  • any breach of a software license in respect of software provided by Customer to CisCom to be installed on any of Customer’s computers;
  • any data loss or damage suffered by Customer or a third party arising from the supply of Goods or Services;
  • any failure in the performance or otherwise by any manufacturer of Goods, including in connection with any breach by the manufacturer of any manufacturer’s warranty related to such Goods;
  • any claim by Customer resulting from a decision to not follow CisCom’s recommendations regarding Services or Goods; or
  • any failure or defect in suitability, function, or fitness for a particular purpose of any Goods or Services.
  1. Assignment

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of CisCom.  Any purported assignment or delegation in violation of this Section 22 is null and void.  No prior assignment or delegation relieves Customer of any of its obligations under this Agreement.

Customer acknowledges and agrees that CisCom may subcontract the performance of any of the Services, provided, however, that CisCom shall retain prime responsibility for their performance.

  1. Relationship Of The Parties

CisCom is an independent contractor and is not employed by Customer.  CisCom is not entitled to any of the benefits normally provided to the employees of Customer.  CisCom reserves the right to determine the method, manner, and means by which the Services will be performed including the order or sequence.  CisCom is not required to perform the Services during a fixed hourly or daily time.  It is acknowledged that CisCom has other customers and offers services to the general public.  CisCom shall not be restricted from engaging other service companies or providers in its discretion on an as-needed basis, and neither such service companies or providers nor their employees shall be deemed employees of CisCom.  Employees of CisCom are not employees of Customer and vice versa.  CisCom and Customer are not joint employers.

  1. No Third-Party Beneficiaries

This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

  1. Non-Solicitation

During the Term and for a period of twenty-four (24) months thereafter, Customer agrees not to solicit, directly or indirectly, or to tender an offer of employment of any kind to or otherwise engage any of the following (each a “Prohibited Party”): (a) an employee or former employee of CisCom within twenty-four (24) months after their termination of employment; (b) a subcontracted service provider or former service provider of CisCom engaged to provide service within 24 months after the termination of their engagement; or (c) a subcontracted service provider’s employee or former subcontracted service provider’s employee of CisCom’s within 24 months of their termination of employment who becomes known to Customer.

If Customer hires or otherwise engages a Prohibited Party, you agree to pay CisCom liquidated damages, and not as a penalty, an amount equal to the total compensation, including fees, salary, wages, bonuses, commissions, training expense, recruiting and staffing company fees, and employee benefits, which were incurred with respect to said Prohibited Party during the prior 12 months of his or her or its employment or engagement with CisCom or such subcontracted service provider, as the case may be, or $100,000 USD, whichever amount is greater.  The Parties agree that the damages which will be caused to CisCom by a breach by Customer are very difficult to ascertain and that the foregoing liquidated damages are reasonable in light of the remedies against you for any other breach of this Agreement, nor shall it preclude CisCom from asserting any cause of action independent of this provision.

  1. Governing Law; Jurisdiction

This Agreement shall be governed in all respects by the internal laws of the Commonwealth of Kentucky without regard to its conflicts of law principles.  Any litigation arising from the terms of this Agreement, or any agreement between the Parties, or work performed or actions taken hereunder, shall be brought in the courts of the Commonwealth of Kentucky.

  1. Interpretation

As used in these Terms, unless a clear contrary intention applies:  (a) references to “Section” are to a section of these Terms, and references to “hereunder,” “hereof,” “hereto,” and words of similar import are references to these Terms as a whole and not to any particular Section or other provision hereof; (b) references to the singular number includes the plural number, and vice versa; (c) “include”, “includes” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import; (d) headings of sections are for convenience of reference only and shall not modify, define or limit any of the terms or provisions of these Terms.

  1. Severability; Survival

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after the Expiration Date.

  1. Amendment

These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each Party.

  1. Notices; Digital Execution

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of an Order or to such other address that may be designated by the receiving Party in writing.  All Notices shall be delivered by nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid), or by e-mail or facsimile (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 30.

Customer and CisCom expressly agree that all transactions related to these Terms now or in the future, may be conducted electronically.  Without limiting the generality of the foregoing: (i) all Quotes and other documents related to the purchase of Goods and Services from CisCom by Customer may be made, signed, and delivered electronically and electronic signatures shall be legally binding and enforceable; and (ii) Customer’s acceptance, through CisCom's digital acceptance process, or by e-mail, fax, or other electronic means, of any Quote which references these Terms or to which these Terms are attached, is intended as and shall be an electronic signature of Customer, legally binding Customer to the terms thereof.

SCHEDULE 1
RESPONSE TIMES AND RATE SCHEDULE