Terms and Conditions

Capitalized terms not defined herein shall have the meaning ascribed to such terms in the Service Proposal.  

  1. Term.The term of these Terms and Conditions (together with the Service Proposal, the “T&Cs”) shall, unless earlier terminated in accordance with the term set forth herein, continue for that period of time as set forth in the Service Proposal (the “Term”). Unless otherwise specified in the Service Proposal, the Term shall automatically expire with no automatic renewal for subsequent periods unless the parties to the Service Proposal (each a “Party” and collectively the “Parties”) enter into a subsequent agreement with new terms and conditions. To that end, if the Parties express a desire to enter into a new agreement, then prior to the end of the Term, the Parties agree to negotiate in good faith a new agreement with new terms and conditions. 
  1. Services, Responsibilities and Fees. Client has requested, and aiden shall provide, support services for Software Packaging Services and Windows Deployment Automation Services (as both are described in the Service Proposal). aiden’s services shall include: (i) technical support management professionals to Client throughout the Term, which technical support management professionals shall have the requisite technical skills to successfully perform the services described herein and fulfill the terms set forth herein; and (ii) management of the activities involving the technical support management professionals throughout the Term.
  1. Client Responsibilities and Requirements. During the Term, Client shall: (i) provide key numbers, installation files, and any company specific settings to be applied in all packages, including any information relating to an increase in endpoints; (ii) ensure that all software to be packaged has a documented method for unattended installation; (iii) ensure that all configurations to be automated are manufacturer supported configurations; (iv) provide a physical or virtual Windows Server at each of Client’s offices supported by aiden if Client utilizes aiden’s Windows Deployment Automation Services; (v) not modify aiden’s Windows Deployment Automation Service or Software Packages; (vi) allow external network communication between aiden’s service infrastructure and an internal replication point, for regular updates to system builds, drivers, packages, and any additional requested services; (vii) as a condition precedent to aiden’s obligation to perform services hereunder, purchase licenses for all hardware and software supported by aiden; (viii) grant aiden with authority to facilitate the download and management of all software to be provided pursuant to the terms herein and accept all software license agreements required to facilitate automatic installs/updates on its behalf. Client agrees that aiden is acting as it subcontractor and agent for the purposes of facilitating the download and management of software and accepting all software license agreements. Client understands that by granting aiden this authority, Client is bound to the software license agreements in the same manner as if Client had accepted the software license agreements itself; (ix) not rent, lease, lend, sell, redistribute or sublicense any aiden software; or (x) not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any aiden software, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with any aiden software). 
  1. Fees. The Parties agree to comply with and be bound by the fee and payment terms set forth in the Service Proposal. The Parties recognize and agree that the pricing in the Service Proposal shall be increased on a pro-rata basis to the extent there is an increase in the number of endpoints to be services by aiden. Unless otherwise provided for in the Service Proposal, aiden is not authorized to incur any expenses on behalf of Client without prior written consent of an authorized agent of Client. 
  1. Non-solicitation of aiden Personnel. Client agrees not to solicit for hire, during the Term and for one (1) year thereafter, any of aiden’s current personnel who have any involvement with Client’s services. This non-solicitation provision is material to the agreement of the Parties and any attempt to violate it is a material breach.
  1. Client’s Representations and Warranties. Client represents and warrants that: (i) it has purchased, and will continue to purchase in the future, licenses for all hardware and software supported by aiden for Client; (ii) it is under no obligation or restriction that would in any way interfere or conflict with the terms herein; (iii) it has the full right, power, and authority to enter into these T&Cs; (iv) an authorized representative has executed these T&Cs; and (v) its execution and delivery of, and the performance of its obligations hereunder will not conflict with or constitute a breach of any other agreement. Client agrees to repair, modify, and/or remedy a breach of any of the representations and warranties described herein within forty-eight (48) hours of notice, or as soon as practicable, free of charge to aiden. These representations and warranties shall extend for the Term of these T&Cs. 
  1. Relationship between the Parties. Nothing contained herein, or in any other document executed in connection herewith, shall be construed to create an employer-employee relationship, partnership relationship, joint venture, or ownership interest between the Parties. Except as otherwise provided for herein, neither Party: (i) has the authority to act, to enter into any contract, or to incur any liability on behalf of the other Party; (ii) shall hold itself out, either verbally or thorough conduct, to have the authority to bind the other Party, (iii) shall make any representations, warranties, or commitments binding the other Party without the other Party’s prior written consent; or (iv) shall hold itself out as an employee of the other Party.
  1. Disclaimer of Warranties. EXCEPT AS PROVIDED FOR HEREIN, AIDEN MAKES NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ANY MATTER AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
  1. Confidentiality and Non-Disclosure. Client acknowledges that during the Term it may be provided access to and become acquainted with various “Proprietary Information.” The term “Proprietary Information” means any information or material which is proprietary to aiden, whether or not owned or developed by aiden, which is not generally known other than by aiden, and which Client may obtain through any direct or indirect contact with aiden. Proprietary Information includes without limitation: business records and plans; financial statements; customer lists and records; potential customer lists and records; aiden’s distribution and billing software; trade secrets; technical information; products; copyrights and other intellectual property; legal documents; processes; strategies; related communications; websites; logins; passwords; codes; domain names; algorithms; documents; blueprints; specifications; information; letters; notes; media lists; original artwork/creative; notebooks; and similar items relating to aiden’s business, whether prepared by Client or otherwise coming into Client’s possession; inventions; innovations; processes; information, records and specifications owned or licensed by aiden and/or used by aiden in connection with the operation of its business including, without limitation, aiden’s business and product processes, methods, customer lists, accounts, and procedures. Client understands, acknowledges and agrees that: (i) the Proprietary Information has been developed or obtained by aiden through the investment of significant time, effort, and expense, and that the Proprietary Information is aiden’s valuable, special, and unique asset, which provides aiden with a significant competitive advantage, and needs to be protected from improper disclosure; (ii) it shall forever hold in confidence and to not disclose the Proprietary Information to any person or entity without aiden’s prior written consent; (iii) it will not disclose any of the aforesaid Proprietary Information, directly or indirectly, or use any of them in any manner, either during the Term or at any time thereafter, except as required by aiden; (iv) all Proprietary Information, whether prepared by Client or otherwise coming into Client’s possession, shall remain aiden’s exclusive property, and that Client shall not retain any copies of the foregoing without aiden’s prior written permission; (v) whenever requested by aiden, Client shall immediately deliver to aiden all such Proprietary Information; and (vi) Client will not disclose anything contained herein or in the Service Proposal and shall at all times preserve the confidential nature of Client’s relationship with aiden. Client’s obligations hereunder shall survive termination or expiration of these T&Cs. Client acknowledges that any violation of the above provisions in this Section 9 will give rise to irreparable injury, inadequately compensable in money damages. Accordingly, aiden may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available in any court of competent jurisdiction. 
  1. Indemnity; Limitation of Liability. Each Party shall indemnify, save and hold harmless the other Party, and all of its respective officers, members, agents, and employees from any and all claims for losses, injuries, damages, claims, causes of action and liabilities, to persons or property, arising out of any negligent or wrongful act, error, omission, or breach of contract, including, but not limited to data breaches, viruses, or other malicious programs or data originating from Client, occasioned in whole or in part by the acts and/or omissions of a Party, its officers, owners, members, partners, agents, employees, or any other person or persons. This Section 10 is a material term, and its failure to perform is a breach of these T&Cs. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER,  THE PARTIES AGREE THAT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DIRECT, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. 
  1. Insurance. Each Party represents and warrants to the other that it currently has, and will continue to maintain, all customary insurance policies covering general liability, errors and omissions, and related coverage areas, and will share proof of same with the other Party upon request. 
  1. Termination. These T&Cs may be terminated by either Party: (i) for material breach or default of the other Party upon ten (10) days prior written notice to the breaching Party (“Notification Period”). If the breaching Party does not cure the material breach or default within the Notification Period, these T&Cs will automatically terminate at the end of the Notification Period; or (ii) upon at least thirty (30) days prior written notice to the other Party if the other Party: (a) ceases or threatens to cease to carry on its business, liquidates or dissolves its business, or disposes of a substantial portion of its assets; (b) becomes insolvent or makes an assignment for the benefit of creditors, or fails generally to pay its debts as they become due or otherwise is likely to become insolvent; (c) voluntarily becomes the subject of any proceeding relating to bankruptcy, insolvency, receivership, liquidation or other similar proceeding or involuntarily becomes the subject of any such proceeding and such proceeding has not been dismissed within thirty (30) days after the involuntary filing was made; or (d) has a material adverse change in its financial condition or ability to perform its obligations hereunder. Any right of termination by any Party shall be in addition to, and not in lieu of, any other rights and remedies that any Party may have hereunder, at law or in equity. Upon termination for any reason or expiration, aiden will to the extent applicable: (y) cease providing services hereunder in an orderly manner in accordance with Client’s instructions; and (ii) deliver all deliverables then due to Client.  
  1. Excusable Delays. Neither Party will be held responsible for delays caused by acts beyond its control, such as acts of God or public enemies, public acts, utility or communications delays or failures not caused by such Party’s negligence or fault, accidents not caused by such Party’s negligence or fault, labor disputes, war, pandemics, or failure of the other Party to provide data that it is required to provide hereunder (a “Force Majeure Event”). The Party delayed or impeded by the Force Majeure Event will use reasonable efforts to mitigate the effect and duration of such Force Majeure Event. The Parties will promptly resume performance hereunder after the Force Majeure Event has passed; however, if a delay continues for sixty (60) days or more, the Party whose performance is not delayed or impeded by the Force Majeure Event may terminate these T&Cs without penalty upon written notice to the other Party. 
  1. Audit Right. aiden shall have the right to audit the number of end point utilized by Client on an annual basis to assure compliance with the terms of the Service Proposal and these T&Cs, upon thirty (30) days prior written notice to Client.  Client will be responsible for assuring full cooperation with aiden in connection with such audits and will provide to aiden, or obtain for aiden’s, access to such properties, records and personnel as aiden may reasonably require for such purpose.  In the event that as a result of the audit aiden reasonably believes that Client has violated the terms of the Service Proposal and these T&CsClient shall be responsible to pay to aiden within thirty (30) days of the completion of such audit any additional fees owed to aiden, and the cost for services describe dint he Service Proposal shall be increased on a pro rata basis to reflect the increase in endpoints. 
  1. Dispute Resolution Procedures. The Parties agree that all disputes and claims arising under hereunder, including claims in tort, contract, alleging statutory violation, or any other claim (“Dispute”) will be resolved as set forth in this Section 14. In the event of a Dispute, the aggrieved Party shall notify the other Party of the Dispute with as much detail as possible. Client and aiden’s business representatives will use good faith efforts to resolve the Dispute within ten (10) days after receipt of a Dispute notice. If the Parties’ business representatives are unable to resolve the Dispute or agree upon the appropriate corrective action to be taken within such ten (10) day period, then either Party may proceed to the next level of these Dispute Resolution Procedures. Pending resolution of the Dispute, both Parties will continue without delay to carry out all their respective responsibilities hereunder. In the event that informal resolution is unsuccessful, the Parties agree to attend binding arbitration to be resolved in the State of Delaware under the Federal Arbitration Act, and, shall be conducted in accordance with one of the following arbitration organizations and its applicable rules (including rules pertaining to special and injunctive relief): JAMS, American Arbitration Association (“AAA”) or other arbitration organization mutually agreed upon between aiden and Client. EACH PARTY UNDERSTANDS FULLY THAT IT WAIVES ITS RIGHT TO APPEAL AN ARBITRATOR’S DECISION AND A JURY TRIAL. The judgment upon an arbitration award shall be entered in any court having jurisdiction thereof. Nothing contained in this Section 14 will limit or delay the right of either Party to seek injunctive relief from a court of competent jurisdiction, whether or not such Party has pursued informal resolution in accordance with this Section 14. 
  1. 16. General Provisions. Client agrees to allow aiden to use Client’s name in its marketing and public relations materials and to provide testimonials. This is not an exclusive agreement, and either Party may conduct other transactions, including transactions with competitors. These T&Cs will be governed by and construed in accordance with applicable U.S. federal law and the laws of the State of Delaware, without regard to conflict of law principles. All notices hereunder shall be in writing and will be deemed given when delivered personally, by overnight delivery upon written verification of receipt, by certified or registered mail, return receipt requested, upon verification of receipt, or by e-mail. Notices will be sent to the applicable address for notice set forth on the signature page to the Service Proposal or to such other address number as a Party may designate by giving notice in accordance with this Section 15. If any provision herein is held by a court of competent jurisdiction to be unenforceable, invalid or illegal, it will be severed and the remainder of these T&Cs will remain in full force and effect. No waiver of any right under, or breach of, these T&Cs will be effective unless in writing and signed by an authorized representative of the Party against whom the waiver is sought to be enforced. No delay or failure by either Party to exercise any right hereunder, and no partial exercise of any right hereunder, will constitute a waiver of that right or any other right. No waiver of any right under, or breach of, these T&Cs will operate as a waiver of any other right or breach, or of the same right or breach on a future occasion. These T&Cs will be binding on all assignees and successors in interest. Neither may assign these T&Cs without the prior written consent of the other Party. The Service Proposal may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. No amendment, change, or modification to these T&Cs shall be valid unless made in a writing signed by the Parties. These T&Cs constitute the entire understanding and agreement of the Parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect. Section headings are not intended to be a full and accurate description of the contents thereof. If there is a Dispute between the Parties, the prevailing Party shall recover all costs and expenses of any proceedings, including reasonable attorney fees and expert fees incurred therein. The Parties agree that no class action, joinder, or consolidation of any claim within the claim of any other person are permitted in arbitration without the written consent of both Parties.