THESE TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO YOUR (HEREINAFTER, “YOU”, “YOUR” OR “CLIENT”) ORDER AND PURCHASE OF SERVICES OFFERED AND PERFORMED BY REDSHIFT IDENTIFIED IN THE RELEVANT STATEMENT OF WORK, ORDER OR OTHER REDSHIFT ORDER DOCUMENT (“STATEMENT OF WORK” OR “SOW”). SUCH SERVICES (COLLECTIVELY, “SERVICES”) MAY BE PERFORMED DIRECTLY OR THROUGH REDSHIFT’S SUBCONTRACTORS.
If you already have a current written agreement with REDSHIFT governing the purchase of Services, that separate agreement will prevail. For purposes of this Agreement, Services do not include third-party branded services, software as a service (“SaaS”), or other cloud computing offerings. REDSHIFT may, from time to time and at its sole option, revise this Agreement without notice by posting the revised agreement on its website. The Agreement posted on REDSHIFT’s website at the time REDSHIFT accepts your order governs that purchase.
1. Entire Agreement:
The relevant SOW, along with this Agreement and any attachments, schedules, addenda, and exhibits are together one agreement and forms the entire agreement between the parties relating to the Services to be performed by REDSHIFT. This Agreement supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter. Any conflicting additional or different terms contained in any other agreement, invoice, or statement of work, as the case may be, are expressly rejected. In the event of a conflict between this Agreement and the SOW, the SOW will govern for such conflicting additional or different terms.
This Agreement commences when REDSHIFT accepts your order (“Effective Date”) and will continue until completion of the Services or as otherwise provided under Section 4 below.
Services will be invoiced per the Service Description. You must pay all undisputed invoices in full within 30 days of the invoice date unless otherwise specified under the Special Terms and Conditions. All payments must reference the invoice number. Unless otherwise specified, all invoices shall be paid in the currency of the invoice
- Credit/Late Payment: REDSHIFT retains the right to decline to extend credit and to require that the applicable purchase price be paid before the performance of Services based on changes in REDSHIFT’s credit policies or your financial condition and/or payment record. REDSHIFT reserves the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any undisputed past due to invoices. You are responsible for all costs of collection, including reasonable attorneys’ fees, for any payment default on undisputed invoices. In addition, REDSHIFT may terminate all further work if payment is not received in a timely manner.
- Taxes: Federal, state, and local sales, use and excise taxes, and all similar taxes and duties, (excluding taxes based on REDSHIFT’s income, assets, or net worth), are the sole responsibility of Client. The client may provide REDSHIFT a tax exemption certificate, which will be subject to review and acceptance by REDSHIFT.
Unless earlier terminated in accordance with this Agreement, either party may terminate this Agreement, in whole or in part, immediately upon a material breach of this Agreement and failure to remedy such breach within 30 days after receipt of written notice of the breach. A material breach of this Agreement includes without limitation, the Client’s failure to pay invoices when due. Notwithstanding the foregoing, REDSHIFT may terminate this Agreement or any related SOW without cause upon 30 days written notice to Client.
5. Limited Service Warranty:
REDSHIFT represents and warrants that Services performed by REDSHIFT will: (i) be performed in a timely, competent, professional and workmanlike manner; (ii) substantially conform to the written specifications under the Service Description for 30 days from completion, or for such other warranty period as may be indicated under the Special Terms and Conditions of the Service Description; (iii) be in compliance with all laws, rules, and regulations applicable to REDSHIFT’s performance of the Services under the Service Description.
6. Warranty Disclaimer:
THE EXPRESS WARRANTIES IN SECTION 5 ARE IN LIEU OF, AND REDSHIFT EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES IN RELATION TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD.
The party’s sole and exclusive obligations, and sole and exclusive remedies, with respect to any action for breach of the limited warranty, will be the re-performance of any deficient Services at REDSHIFT’s expense. If REDSHIFT is unable to remedy any deficient Services within 30 days of notice or such additional time as may be agreed upon by the parties, REDSHIFT will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services. No re-performance will extend any warranty period. Any credits issued to you by REDSHIFT for any reason must be applied by you within 2 years from the date the credit is issued. If not used within such a period, credits will automatically expire.
8. Intellectual Property Rights:
REDSHIFT retains all right, title and interest in, without limitation, any works of authorship, know-how, or any invention, device, process, method, development, design, specifications, technique, apparatus, reports, schematics or technical information (whether patentable or not), documentation, software or enhancements, improvements, alterations, interfaces, workflows, and best practices developed, invented, created or reduced to practice by REDSHIFT, except for Work Product defined below and set forth in an SOW (“REDSHIFT IP”), and which may be used in carrying out the Services, including any modifications or improvements made to REDSHIFT IP during or as a result of the Services to be performed under this Agreement. Upon payment in full of all amounts due to REDSHIFT for the Work Product, all documents, drawings, specifications, information, patents, patent applications, inventions, developments or processes or any copyrightable material originated and developed by REDSHIFT specifically for Client as part of the Services to be performed by REDSHIFT under this Agreement (“Work Product”), except for any REDSHIFT IP contained within such Work Product, shall be owned by Client. REDSHIFT hereby grants Client a worldwide, non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use REDSHIFT IP in the course of Client’s internal, business operations.
9. Confidential Information:
Both parties will maintain in confidence and safeguard all confidential information, as defined in this paragraph, of the other party, its affiliates, and its customers. “Confidential Information” means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, customer lists, personal information, financial information, sales and marketing plans of the other party, its affiliates, or its customers. Both parties recognize and acknowledge the confidential and proprietary nature of any Confidential Information and acknowledge the irreparable harm that could result if such Confidential Information is disclosed to a third party or used for unauthorized purposes. Each party agrees to use any Confidential Information only to conduct business with each other and their clients in the manner contemplated by this Agreement. Both parties will restrict disclosures of any Confidential Information to only those personnel who need to know and will bind such personnel to obligations of confidentiality to the same extent that each party is bound by this Agreement. Upon request of the owner of Confidential Information, the other party will promptly return all materials incorporating any Confidential Information and any copies. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in REDSHIFT’s or your possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed; (v) is otherwise permitted to be disclosed under this Agreement; (vi) is disclosed with the prior written consent of the disclosing party, or (vii) is required to be disclosed in any civil or criminal legal proceeding, regulatory proceeding or any similar process, however, the party required to make the disclosure under the law shall give prompt notice of this to the other party prior to such disclosure so that the other party may seek an appropriate protective order or give its written consent to such disclosure.
REDSHIFT may perform the Services at Client’s place of business, at REDSHIFT’s facilities or such other locations as REDSHIFT and Client deem appropriate. When the Services are performed at Client’s premises, REDSHIFT will attempt to perform such Services within Client’s normal business hours unless otherwise jointly agreed to by the parties. The client will also provide REDSHIFT access to Client’s staff and any other Client resources (and when the Services are provided at another location designated by Client, the staff and resources at such location) that REDSHIFT determines are useful or necessary for REDSHIFT to provide the Services. When the Services are provided on Client’s premises or at another location designated by Client, Client agrees to maintain adequate insurance coverage to protect REDSHIFT and Client’s premises and to indemnify and hold REDSHIFT and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of REDSHIFT’s gross negligence or willful misconduct.
Both parties agree that, during the term of this Agreement and for a one-year period after the termination or expiration of this Agreement, neither party will, directly or indirectly, solicit, offer employment or hire any current or former employee, contractor or consultant of the other party who was directly involved in the performance of this Agreement or any related SOW. This provision does not restrict the right of either party to solicit or recruit generally in the media and does not prohibit either party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.
Each party will indemnify, defend and hold harmless the other party, its officers, directors, employees, agents, and Affiliates from and against any damages, penalties, costs, and expenses (including reasonable attorney fees) incurred by the other party in connection with any claims or actions by a third party relating to bodily injury or death of any person or damage to tangible personal property to the extent caused by the negligence or willful acts or omissions of the party that has the obligation to defend, indemnify, or hold harmless. In the event that any claim is made or suit is commenced by a third party against a party or other entity entitled to indemnity under this Section (an “Indemnified Party”), the Indemnified Party shall: (i) give prompt written notice of such demand, claim or suit to the party that has an indemnity obligation (the “Indemnifying Party”); and (ii) provide reasonable assistance and cooperation in the defense and settlement of any claim or legal proceeding. Notwithstanding the foregoing, if the Indemnifying Party fails to assume its obligation to defend, the Indemnified Party may do so to protect its interests and seek reimbursement from the Indemnifying Party.
13. Limitation of Liability:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION) ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM A PARTY UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT PAID OR TO BE PAID BY YOU FOR SERVICES PERFORMED UNDER THIS AGREEMENT. IN ADDITION, NO ACTION, WHETHER FOR INDEMNIFICATION OR OTHERWISE, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT, MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE DAMAGE, LOSS OR EXPENSE OCCURRED.
In addition to any specific Client duties set forth in any applicable Statement of Work, Client agrees to cooperate with REDSHIFT in connection with the performance of the Services by providing: (i) timely responses to REDSHIFT’s inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by REDSHIFT which are necessary or useful as determined by REDSHIFT in connection with providing the Services, including, but not limited to, physical and computer access to Client’s computer systems, and (iii) all Required Consents necessary for REDSHIFT to provide the Services. “Required Consents” means consents or approvals required to give REDSHIFT, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Client acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Client and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Client who is selected by Client to work with REDSHIFT
Any notice required or permitted to be given hereunder must be in writing and is considered received: (a) when personally delivered; (b) 1 business day after having been sent by overnight mail via a professional carrier; or (c) when sent via facsimile or electronic mail, receipt confirmed, with an original document placed in the mail within 5 business days of the date of that facsimile or electronic mail. All business communication will be sent to the addresses as either party designates in writing to the other. Legal notices must be sent with a copy for REDSHIFT addressed to REDSHIFT, 6 Jasmine Ct. Bolingbrook, IL 60490
This Agreement will be governed by the substantive laws of the state of Illinois without regard to any conflict of law rules. Services will be deemed accepted 5 days from the date of the invoice unless otherwise specified in writing under the Services Description. Any subsequent additions, deletions, or modifications to this Agreement are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of this Agreement is for any reason found to be invalid, illegal or unenforceable, all other parts will remain in effect. A delay or failure to exercise or partially exercise any right under this Agreement does not operate as a waiver, nor will it preclude the future exercise of that right or permit, or sanction any subsequent breach of any term or condition. Neither party may assign its duties or rights under this Agreement, whether by operation of law or otherwise, except with the other party’s prior written consent; provided that REDSHIFT will have the right to assign this Agreement to an affiliate or corporate successor. REDSHIFT may subcontract any or all of its obligations hereunder to one or more qualified parties without your prior consent unless otherwise restricted in this Agreement. REDSHIFT is not responsible for default or delays caused by your failure to provide accurate instructions, information, access to facilities, or suitable product or application environment. Neither party will be liable for any delays in the performance of this Agreement due to circumstances beyond its control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages, or material shortages. The provisions of this Agreement, which by sense and context are intended to survive, including but not limited to the sections related to payment, warranties, remedies, indemnification, confidentiality, and limits of liability, will survive the expiration or termination of this Agreement. REDSHIFT is an independent contractor for you. No personnel employed or engaged by REDSHIFT to perform the Services for you will be considered your employees, agents, partners, joint venture partners, or franchisors. REDSHIFT has sole responsibility for the direction of its employees and has the right to fire, hire, suspend, layoff, transfer, or reassign employees at will without your consent. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.