1. Standard Terms and Conditions. This Agreement contains the standard terms and conditions that will apply to any Services provided by DMD to Client pursuant to Statements of Work (a “SOW”) as set forth herein.
2. Services to be Provided by DMD. From time to time, Client shall inform DMD of Services that Client needs from DMD. Prior to performing such services, Client and DMD shall prepare a SOW, a sample copy of which is attached hereto as Exhibit A, that sets forth the following aspects of the Services which Client wishes for DMD to perform: i) a detailed description of the particular Services that DMD will perform; ii) a timetable for the performance of such Services; iii) the fees which Client agrees to pay DMD for those Services; and any other information related to that discrete SOW. Notwithstanding the sample SOW attached, Client and DMD agree that they may use, from time to time, additional forms of SOW that are enforceable so long as they comply with all other terms and conditions of this Agreement. All SOWs shall be executed by Client and DMD to have any force and effect. The terms of a duly authorized SOW are hereby incorporated into this Agreement as if it were entered into contemporaneously herewith. Any reference to this “Agreement” shall, by definition, include any SOW which shall become part of this Agreement when executed by the parties.
3. Changes to Services. At any time during the term of this Agreement, should Client desire DMD to provide revised Services, Client shall submit such requested additions or revisions to Client in writing. DMD shall have ten (10) business days to accept or reject the requested revisions. If DMD has not responded within ten (10) business days, such non-response shall constitute a rejection of the request. If DMD accepts the revisions, Client and DMD agree to amend the applicable SOW to memorialize the changes in the Services and the pricing related to those Services. In the event that any revised or additional Services has to be performed in an expedited manner such that it is not practicable to execute a revised SOW, Client agrees to compensate DMD for such Services performed notwithstanding the lack of an executed revised SOW memorializing the provision of such Services.
4. Performance. DMD’s means and methods for performing the Services must comply with the terms and conditions of this Agreement. To the extent such means and methods are not delineated in the applicable SOW, DMD agrees that the Services shall be performed in a thorough and workmanlike manner, in accordance with all applicable standards within DMD’s industry. Unless otherwise provided in a SOW, DMD will provide all necessary equipment and related materials, including specialized equipment, to perform the Services as specified in the applicable SOW. Client will supply such working space and facilities for Provider while on Client’s premises, and such additional materials as specified in the applicable SOW.
5. Right of First Refusal. Client acknowledges and agrees that DMD provides the Services on a nationwide basis. From time to time, it is possible that Client has business locations that require services that, based on the scope or timing of such services, DMD is unable to perform. Notwithstanding the foregoing, Client hereby agrees that DMD shall have the exclusive right to perform the Services at all of Client’s locations. In the event that DMD is unable to perform the desired Services per a particular SOW, DMD shall inform Client of that fact and, then, Client is authorized so seek a substitute vendor for the Services set forth in that SOW, without terminating or otherwise amending the terms and conditions of this Agreement.
6. Term of Agreement. The Term of this Agreement shall begin on the Effective Date and continue for five (5) years therefrom. This Agreement shall renew automatically unless either party terminates this Agreement per this Agreement.
7. Termination. This Agreement may be terminated for cause by either party in the event of a breach of this Agreement by the other party, so long as the non-breaching party provides written notice of the breach and intent to terminate the Agreement (“Notice of Intent to Terminate”) and the breach is not cured for sixty (60) days. If the breach is not cured, the date sixty (60) days from the time the non-breaching party provides notice of its intent to terminate shall be deemed the “Termination Date.” Notwithstanding the termination of this Agreement, Client shall pay DMD for any Services that it performs through the termination of the Agreement. Upon termination or expiration of this Agreement, or at any prior time upon the request of Client, DMD will promptly deliver to Client all memoranda, notes, records, drawings, manuals, disks, documents, media, equipment, papers, badges, access codes, or other information obtained by DMD from Client.
8. Compensation. Client will pay DMD for the performance of Services in the amounts and in accordance with the schedule specified in the applicable SOW (the “Schedule”). DMD shall send all invoices to Client at the following address:
City, State, Zip:
or such other address as Client shall designate, in writing, from time to time. Client will pay such invoice in full within thirty (30) days after receipt of DMD’s invoice. In the event of a termination of this Agreement, all outstanding work under SOW will be completed within sixty (60) days of the receipt of the Notice to Terminate, and Client shall remit payment to DMD within thirty (30) days of the Termination Date. Any amounts not timely paid will bear interest at the rate of one and one-half percent (1.5%) interest per month until paid in full.
9. Taxes. Client agrees to pay any taxes which are required by law to be collected by DMD from Client in connection with providing the Services.
10. Independent Contractor. This Agreement establishes an independent contractor relationship between Client and DMD. All of the terms of this Agreement shall be interpreted accordingly. The parties do not intend to create by this Agreement an employer/employee relationship between Client and DMD, or any relationship of partnership, joint venture, or agency, and nothing in this Agreement shall be construed to create such relationships. DMD acknowledges that it is not a Client employee, but is an independent DMD and, as such, it is DMD’s sole obligation to make any tax payments associated with the income that DMD receives from Client. DMD understands and agrees that neither it nor any person providing services for DMD is eligible for any Client employee benefits, including, but not limited to, holiday, vacation or sick pay, social security, Medicare, unemployment or disability insurance, workman’s compensation, health and welfare benefits, profit sharing, 401(k) or any employee stock option or stock purchase plans.
11. Disaster Recovery Plan. DMD warrants that during the term of this Agreement, DMD shall maintain a disaster recovery plan (the “Plan”) which protects Client’s interest in DMD 's ability to provide the Services hereunder. DMD shall provide a copy of such Plan within ten (10) business days of Client's request. The Plan shall, at a minimum, conform to the standards set forth by the Federal Financial Institutions Examination Council (“FFIEC”). Upon written request from Client, DMD shall permit Client, or its authorized agent, to inspect and review DMD’s records, processes and procedures with respect to the Plan. Such review of the Plan is subject to any reviewing individual signing a non-disclosure agreement related to such review.
12. Warranties; Indemnity.
a. Employees/Subcontractors of DMD. DMD represents and warrants that all Services rendered pursuant to this Agreement shall be performed by its employees or its duly authorized subcontractors (collectively, DMD’s “Agents”), as determined in DMD’s sole discretion. DMD’s Agents shall have the requisite training to perform the Services contemplated herein. DMD also agrees that any subcontractor it hires to perform the Services for Client, shall, prior to performance of any Services, agree in writing to be bound by the terms of this Agreement.
b. General Indemnity. DMD shall indemnify Client and hold Client harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses arising from the death or injury of any person or persons, including employees of Client, or from the damage or destruction of any physical property or properties, and attributable to, or resulting from, the performance of this Agreement by DMD. Client shall defend, indemnify and hold DMD harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses arising from the death or injury of any person or persons, including employees of DMD, or from the damage or destruction of any physical property or properties, and attributable to, or resulting from, the performance of this Agreement by Client.
c. Insurance. DMD shall, at DMD’s expense, maintain insurance policies that cover DMD’s activities under this Agreement, and the activities of DMD’s Agents, including, but not limited to, workers’ compensation insurance, and comprehensive general liability, errors and omissions liability, and media liability, with minimum limits of insurance of Three Million Dollars ($3,000,000) per claim, and Five Million Dollars ($5,000,000) annual aggregate. In addition, DMD will maintain cyber-insurance covering the impact of a data breach, with coverage of Ten Million Dollars ($10,000,000) per claim. All of the insurance policies required by this Agreement will be underwritten by insurers who maintain a minimum A.M. Best rating of A-. DMD will name Client as an additional insured on each such policy. Upon the written request of Client, DMD shall provide Client with a certificate of insurance evidencing such coverages. In addition, DMD will provide Client thirty (30) days advance written notice of any cancellation or reduction in coverage or limits.
d. Limitation of Liability. In no event will either party be liable to the other for any special, incidental, indirect, punitive, or consequential damages, whether based on breach of contract, tort or otherwise, whether or not such party has been advised of the possibility of such damage. DMD shall in no event be liable to Client for damages incurred with respect to one SOW in an amount in excess of amounts paid to DMD by Client under that particular SOW. Any claim for damage that Client wishes to assert against DMD, however arising, must be made in writing to DMD within thirty (30) days of Client’s discovery of the damage, or such claim shall be conclusively deemed to have been waived and released.
13. Client Confidentiality. DMD acknowledges and agrees that all ideas, information, and materials, whether in written, oral, magnetic, photographic, optical or other form that are proprietary to Client and are highly sensitive nature and shall constitute the confidential information of Client (collectively, the “Client Confidential Information”) including, without limitation, the following: i) Client’s internal business procedures and business plans, including analytical methods and procedures, vendor names, other vendor information, purchasing information, financial information, service and operational manuals and documentation therefore, ideas for new products and services and other such information which relates to the way Client conducts its business and which is not generally known to the public; ii) strategic data, including marketing and development plans, forecasts, and forecast assumptions and volumes, and future plans and potential strategies of Client which have been or are being discussed; iii) financial data, price and cost objectives, prices lists, pricing policies and procedures, and estimating and quoting policies and procedures; and iv) Client’s customer data, including customer lists, names of existing, past or prospective customers and their representatives, data about or provided by prospective, existing or past customers, customer service information and materials, data about or provided by prospective, existing or past customers, customer service information and materials, data about the terms, conditions and expiration dates of existing contracts with customers; and v) any and all information not generally known to the public or within the industries or trades in which Client competes.
DMD agrees: i) to hold such Client Confidential Information in strict confidence; ii) not to disclose such Client Confidential Information to any third party, except as required under applicable law; iii) to use such Client Confidential Information only as necessary to perform the Services under this Agreement; and iv) upon termination of this Agreement, to return or destroy all tangible Client Confidential Information (including tangible media containing intangible Client Confidential Information) to Client which has not already been disposed of in accordance with the Services provided by DMD under this Agreement.
14. DMD Confidentiality. Client acknowledges and agrees that all ideas, information, and materials, whether in written, oral, magnetic, photographic, optical or other form that are proprietary to DMD and are highly sensitive nature and shall constitute the confidential information of DMD (collectively, the “DMD Confidential Information”) including, without limitation, the following: i) DMD’s internal business procedures and business plans, including analytical methods and procedures, vendor names, other vendor information, purchasing information, financial information, service and operational manuals and documentation therefore, ideas for new products and services and other such information which relates to the way DMD conducts its business and which is not generally known to the public; ii) strategic data, including marketing and development plans, forecasts, and forecast assumptions and volumes, and future plans and potential strategies of DMD which have been or are being discussed; iii) financial data, price and cost objectives, prices lists, pricing policies and procedures, and estimating and quoting policies and procedures; and iv) DMD’s customer data, including customer lists, names of existing, past or prospective customers and their representatives, data about or provided by prospective, existing or past customers, customer service information and materials, data about or provided by prospective, existing or past customers, customer service information and materials, data about the terms, conditions and expiration dates of existing contracts with customers; and v) any and all information not generally known to the public or within the industries or trades in which DMD competes.
Client agrees: i) to hold such DMD Confidential Information in strict confidence; ii) not to disclose such DMD Confidential Information to any third party, except as required under applicable law; iii) to use such DMD Confidential Information only as necessary to perform the Services under this Agreement; and iv) upon termination of this Agreement, to return or destroy all tangible DMD Confidential Information (including tangible media containing intangible DMD Confidential Information) to DMD.
15. Hazardous Materials. Whenever DMD uses or stores flammable, explosive, or other hazardous materials or hazardous equipment or uses hazardous or unusual methods for its performance of the Services, DMD shall exercise utmost care and shall carry on such activities under supervision of properly trained personnel and in accordance with all Client policies, programs and procedures related to hazardous materials including, without limitation, R2 and ISO 14001 standards. DMD shall not take any remedial action with regard to hazardous materials used in the performance of the Services or enter into any settlement agreement, consent or decree or other compromise relating thereto without first notifying Client in writing of DMD’s intention to do so and providing Client ample opportunity to protect its interests. DMD shall provide Client with prompt notice upon being notified of any of the following: i) any governmental or regulatory action; ii) any claim against DMD or Client that relates to any Services performed in connection with this Agreement; and iii) any reports, complaints, notices or warnings of asserted violations to any governmental agency.
16. Waste Handling. DMD shall manage, handle, and dispose of all wastes generated by its Services, properly and in accordance with all applicable governmental requirements, including those applicable to hazardous waste, and all Client policies, programs, and procedures related to waste handling including, without limitation, R2 standards. If requested in writing by Client, DMD shall promptly deliver to Client copies of manifests or applicable shipping documents reflecting the legal and proper disposal of any hazardous materials that DMD has caused to be removed from any of Client’s premises.
17. Governmental Permits and Notifications. DMD shall investigate the need for, and shall procure in its own name, to the extent allowed by law, all governmental permits, notifications, approvals, and inspections required for the performance of DMD’s Services under this Agreement. DMD shall promptly notify Client in writing if any permit or approval lapses, or is modified, or revoked. If, under applicable law, any such permits or approvals must be procured in Client’s name, DMD shall promptly so inform Client and shall provide reasonable assistance to Client in obtaining such permits or approvals.
18. Compliance. DMD shall comply with all local, state, and federal environmental, health, and safety rules and regulations that apply to the Services performed for Client. DMD acknowledges and agrees that it is DMD’s responsibility to understand all site policies, procedures, and programs relating to environmental protection, safety, and health, and to ensure that DMD’s Agents understand such policies, procedures and programs. DMD shall also perform Services in compliance, whether on its own or as a certified partner, with the following standards: R2, NAID, ISO14001, and ISO 45001. Without limiting the foregoing, if any services will be performed in California, DMD expressly acknowledged that i) DMD is aware of the requirements of California Labor Code Section 2810 and expressly represents that DMD’s fees under this Agreement suffice so that DMD can, and will, comply with all applicable local, state, and federal laws, or regulations governing the labor or services to be provided; and ii) Client may, and shall, rely upon such representation.
19. Security. DMD shall perform Services under this Agreement in a manner to avoid the risk of loss, theft, or damage by vandalism, sabotage, or other means, to any Client property. DMD shall promptly take all reasonable precautions that are necessary and adequate to protect against conditions that involve a risk of loss, theft, or damage to its property, Client’s property, Client’s Confidential Information, as described in the Agreement, and the work site. DMD shall continuously inspect all its work, materials, and equipment facilities to discover and determine any of the above-described conditions, and DMD shall be solely responsible for discovery, determination and correction of any such conditions. DMD shall cooperate with Client on all security matters, and DMD shall promptly comply with any project security requirements established by Client. DMD shall prepare and maintain accurate reports of incidents of loss, theft, or vandalism, and, if requested by Client, DMD shall furnish these reports to Client in a timely manner. DMD is solely responsible for the safety of its own personnel. When applicable to the scope of the Services provided, DMD shall comply with NAID AAA certification requirements.
20. Assignment. DMD may assign this Agreement, whether in whole or in part, without Client’s prior consent. Client may assign this Agreement upon receipt of DMD’s written consent to such assignment. This Agreement shall be binding upon and shall inure to the benefit of all of the parties, their successors, and permitted assigns.
21. Marketing. Client authorizes DMD to disclose to third parties, through DMD’s online presence or any other marketing or promotional material, the services that DMD has performed for Client. Client further authorizes DMD to utilize Client’s name and logo in DMD’s website and other marketing and promotional materials. Upon Client’s request, DMD will provide Client with mockups of how DMD intends on using Client’s name and logo. Client may, in Client’s sole discretion, revoke DMD’s authority to use Client’s name and logo by providing written notice to DMD of Client’s revocation of such authority.
22. Notices. Any and all notices or other communications required or permitted by this Agreement or by law, to be served on, or given to, either party under this Agreement shall be in writing, and shall be deemed duly given or delivered when sent via overnight delivery service (e.g., Federal Express), by facsimile (subject to confirmation of receipt), or by certified mail, return receipt requested, by first-class, postage prepaid, addressed as follows:
If to DMD If to Client
23. Entire Agreement. This Agreement, together with any Exhibits attached hereto, and any SOWs issued hereunder, represents the entire agreement of the parties hereto, related to the subject matter hereof, and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this Agreement, are superseded, and of no force and effect. This Agreement may be modified only in writing, signed by authorized representatives of both parties. There are no other representations, agreements or understandings, written or oral, except as expressly set forth herein. Each party acknowledges that it is not entering into this Agreement on the basis of any representations or promises not expressly contained in this Agreement.
24. Waiver. All waivers hereunder must be made in writing and signed by the party to be charged. The failure at any time to require the other party’s performance or any obligation under this Agreement shall not affect the right subsequently to require performance of such obligation.
25. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona without regard to its conflict of law principles. In the event any litigation should arise between the parties relating to this Agreement, such action shall be brought solely in the State or Federal Courts located in Maricopa County, Arizona, and all parties hereto agree to submit to the personal jurisdictions of such courts.
26. Authority and Signing in Counterparts. DMD and Client warrant and represent that the persons signing on their respective behalf’s have full power and authority to enter into this Agreement and to obligate DMD and Client to their respective performances hereunder. The parties agree that this Agreement may be signed in counterparts and that a facsimile copy of a signature shall be afforded the same force and effect as an original signature.
27. Attorney Fees. In the event of any litigation between the parties concerning, arising out of, or related to, the Agreement, the prevailing party in such litigation shall be entitled to be reimbursed by the other party for all its costs and expenses of litigation including, but not limited to, its reasonable attorneys’ fees, such amounts to be determined by the court.
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