Legal Center
QIT Solutions Legal Center
The following policies and terms apply to all services provided by QIT Solutions. These provisions are incorporated by reference into your signed Managed Services Agreement, Statement of Work, or other agreements with QIT Solutions.
1. Confidentiality
In connection with this Agreement, either Party may receive documentation, data, and information concerning the other Party which is non-public, private, confidential, and/or proprietary in nature. For purposes of this Agreement, a Party disclosing confidential information shall be referred to as the “Disclosing Party” and a Party receiving confidential information shall be referred to as the “Receiving Party”. Each of the Parties may be considered a Disclosing Party or a Receiving Party, as the case may be.
"Confidential Information" in this Agreement means all information in whatever form, tangible or intangible, whether disclosed to or learned by the Receiving Party, pertaining in any manner to the business of the Disclosing Party or to the Disclosing Party's affiliates, subsidiaries, consultants, employees, contractors, or business associates, whether in written, oral, encoded, graphic, magnetic, electronic, or in any other tangible or intangible form, and whether or not labeled as confidential by the Disclosing Party or otherwise provided by the Disclosing Party.
"Confidential Information" includes, without limitation, the following:
a) The names and contact information of vendors, suppliers, investors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, clients, employees, or buyers and sellers (the "Contacts"); and
b) Customer lists, prospective customer lists, business plans, financial data, trade secrets, or any other data related to this Agreement.
A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
Each party agrees to hold the other’s confidential Information in strict confidence and not disclose it to any third party (except as permitted hereunder) during the term of this Agreement and for a period of three (3) years thereafter. Also, each party agrees to disclose confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement.
2. Restrictive Covenants
Each restrictive covenant on the part of a Party set forth in this Agreement shall be construed as a covenant independent of any other covenant or provision of this Agreement between QIT Solutions and Service Recipient, and the existence of any claim or cause of action by a Party against the other, whether predicated upon another covenant or provision of the Agreement or otherwise, shall not constitute a defense to the enforcement by a Party of any other covenant or this Agreement.
3. Independent Contractor / Vendor
QIT Solutions and Service Recipient will be and shall act as independent contractors and not as agents or partners of, or joint venturers with, the other party for any purpose, and neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
4. Warranty
QIT Solutions shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet standard industry practices in QIT Solutions' community and region, and will provide a standard of care equal to, or superior to, that used by service providers similar to QIT Solutions on similar projects. QIT Solutions warrants that the Services shall be of good quality and workmanship and in accordance with industry standard procedures for the IT System, and that the IT System will meet the specifications therefore.
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, QIT SOLUTIONS DOES NOT WARRANT THE SERVICES PERFORMED HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF: (1) MERCHANTABILITY; (2) FITNESS FOR A PARTICULAR PURPOSE; (3) EFFORT TO ACHIEVE PURPOSE; (4) QUALITY; (5) ACCURACY; (6) RESERVED; (7) TITLE; (8) MARKETABILITY; (9) PROFITABILITY; (10) RESERVED; AND/OR (11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
5. Limitation of Liability
EXCEPT FOR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO QIT SOLUTIONS FOR THE SERVICES SOLD HEREUNDER.
The limitation of liability set forth in this section shall not apply to: (a) liability resulting from QIT Solutions' gross negligence or willful misconduct; and (b) death or bodily injury resulting from QIT Solutions’ acts or omissions.
6. Limitation of Liability for Cybersecurity Incidents
QIT SOLUTIONS SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, OR EXPENSE CAUSED BY A CYBERSECURITY INCIDENT RESULTING FROM A BREACH OF THE CLIENT'S SYSTEMS, NETWORKS, OR DATA DUE TO UNAUTHORIZED ACCESS, USE, OR DISCLOSURE, WHETHER CAUSED BY THE CLIENT'S EMPLOYEES OR BY ANY OTHER THIRD PARTY. THE CLIENT SHALL BE RESPONSIBLE FOR MAINTAINING THE SECURITY AND CONFIDENTIALITY OF THEIR OWN SYSTEMS, NETWORKS, AND DATA, AND FOR ENSURING THAT THEIR EMPLOYEES ARE TRAINED AND INFORMED ABOUT PROPER CYBERSECURITY PRACTICES. IN THE EVENT OF A CYBERSECURITY INCIDENT CAUSED BY THE ACTIONS OR NEGLIGENCE OF THE CLIENT'S EMPLOYEES OR ANY OTHER THIRD PARTY, THE CLIENT SHALL INDEMNIFY AND HOLD HARMLESS QIT SOLUTIONS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, OR EXPENSES ARISING FROM OR IN CONNECTION WITH SUCH INCIDENT. FURTHERMORE, QIT SOLUTIONS, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY “REPRESENTATIVES”) SHALL NOT BE LIABLE FOR ANY DAMAGES, LOSSES, OR EXPENSES INCURRED AS A RESULT OF ANY FAILURES, INTERRUPTIONS, OR OTHER DISRUPTIONS OF SERVICE RESULTING FROM ANY CAUSE BEYOND QIT SOLUTIONS' CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, ACTS OF WAR OR OTHER ACTS OF TERRORISM, STRIKES, LOCKOUTS, OR OTHER LABOR DISPUTES, AND ANY OTHER CAUSES BEYOND THE REASONABLE CONTROL OF QIT SOLUTIONS.
7. Default
The occurrence of any of the following shall constitute a material default under this Agreement:
(a) The failure to make a required payment when due or to provide Services as purchased ten (10) days prior written notice and opportunity to cure.
(b) The insolvency or bankruptcy of either party.
(c) The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application, or sale for or by any creditor or government agency.
8. Remedies
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term, or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such a time period shall result in the automatic termination of this Agreement. Upon any such termination, the Parties shall follow the procedures set forth in “Termination”.
9. Force Majeure
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, national emergencies, insurrections, riots, wars, strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
10. Arbitration
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator, and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter.
The arbitration shall take place at a location that is reasonably centrally located between the parties or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award damages and fees. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction.
The agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
11. Representations and Warranty
QIT Solutions represents and warrants to Service Recipient that the products and services provided to Service Recipient (a) will be suitable for Service Recipient’s needs, and (b) will not violate the intellectual property rights of any third party.
12. Severability
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
13. Hiring of QIT Solutions Employees
The Service Recipient agrees it shall not hire or attempt to hire any QIT Solutions employee, contractor, or former employee who worked on Service Recipient’s account and, in the case of a former employee, is within six (6) months of his/her termination of employment with QIT Solutions, as a full or part-time employee or contractor, or enter into any other such arrangement without the written consent of QIT Solutions. The Service Recipient understands and agrees that QIT Solutions shall suffer irreparable harm if such event occurs, and that it has breached this Agreement. QIT Solutions shall be entitled to injunctive relief.
14. Amendment
This Agreement may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.
15. Governing Law
This Agreement shall be construed in accordance with the laws of the State of Florida, Palm Beach County, to the exclusion of all others.
16. Restrictions on Transfer
This Agreement shall not be assigned, sublicensed, or in any other manner transferred to any other person or entity by Service Recipient without the prior written consent of QIT Solutions; provided, however, that Service Recipient may assign this Agreement without consent to a successor in interest via stock or asset purchase, merger, or consolidation.
17. Notice
Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person, email, or by certified mail, return receipt requested, to the address set forth in the opening paragraph addressed pursuant to the below, or to such other address as one party may have furnished to the other in writing.
Further, both Service Recipient and QIT Solutions designate the person(s) (“Designated Contacts”) as the only authorized person(s) and/or points of contact, empowered to “Transact Business” with the other. “Transact Business” shall be defined and/or interpreted in the broadest sense of the words.
Contacts of either party shall only be re-designated in writing by an executive officer of said Party, delivered pursuant to this Agreement.
Marketing Communications: Service Recipient agrees to receive company-wide marketing communications from QIT Solutions, with the option to opt out of such communications at any time. This opt-out option does not apply to emergency notifications, which Service Recipient will continue to receive as necessary.
18. Waiver of Contractual Right
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
19. Survival
Provisions of this Agreement which by their nature should apply beyond their terms, including but not limited to obligations contained in Confidential Information, Indemnification, and Non-Solicitation provisions of this Agreement, will remain in force after any termination or expiration of this Agreement.
20. Indemnification
Each party agrees to indemnify, defend, and hold harmless the other party and its officers, directors, shareholders, managers, employees, agents, successors, and assigns (collectively “Representatives”) from and against any and all claims, losses, liabilities, damages, penalties, fines, forfeitures, judgments, and any other fees, costs, and expenses, including reasonable attorneys’ fees and related costs and expenses (collectively “Claims”), resulting from (i) the negligence or misconduct of the indemnifying party, (ii) a breach of this Agreement, (iii) any claims relating to the violation or infringement of the intellectual property rights of any third party, (iv) a violation of any laws in the performance of such party’s obligations hereunder or under the Agreement, or (v) a breach, or alleged breach, of such party’s representations, warranties, covenants, or agreements hereunder.
