Datastream IT Terms & Conditions
- Payment Terms
- The following are payment terms for professional services, which are defined as but not limited to: consulting, installation, programming, training, site-surveying, on-site support, and remote support:
- Unless otherwise specified in writing, Customer will pay Datastream 100% of the invoice amount within 30 days of the invoice date. Any balance remaining after 30 days of the invoice date shall be considered past due.
- The following are payment terms for equipment, which are defined as but not limited to: software, hardware, and warranty:
Unless otherwise specified in writing, Customer will pay Datastream 100% of the contract amount upon signing of engagement agreement for all software, hardware, or other equipment.
- All past due amounts shall be subject to a monthly finance charge equal to the lesser of (i) 2% compounded monthly or (ii) the maximum rate allowed by law.
- Reimbursable Expenses
- Customer shall reimburse Datastream for all, pre-approved by Customer, reasonable out-of-pocket expenses actually incurred by Datastream in performance of the services.
- Unless otherwise agreed upon in writing, Datastream disclaims all warranties, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with respect to the services.
Because of the consulting engagement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information means nonpublic information that the disclosing party designates as being confidential or which under the circumstances surrounding disclosure should be treated as confidential.
Confidential Information includes, without limitation, information relating to the disclosing party’s software or hardware products which may include passwords, contracts, source code, data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods as well as information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial results.
Confidential Information also includes information received from others that the disclosing party is obligated to treat as confidential and oral information that is identified by the disclosing party as confidential. Confidential Information disclosed by a subsidiary of the disclosing party and/or its agents is covered by this Agreement. Confidential Information includes all tangible materials which contain Confidential Information whether written or printed documents, computer disks or tapes whether user or machine-readable.
Confidential Information shall not include any information that: (1) is already known to the receiving party or its affiliates, free of any obligation to keep it confidential; (2) is or becomes publicly known through no wrongful act of the receiving party or its affiliates; (3) is received by the receiving party from a third party without any restriction on confidentiality; (4) is independently developed by the receiving party or its affiliates; (5) is disclosed to third parties by the disclosing party without any obligation of confidentiality; or (6) is approved for release by prior written authorization of the disclosing party.
The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Each party agrees to maintain at least the same procedures regarding Confidential Information that it maintains with respect to its own Confidential Information. Without limiting the generality of the foregoing, neither party shall permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by the disclosing party and the receiving party shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder. The other party may only use one party’s Confidential Information in order to fulfill its obligations under this Agreement.
Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of the services agreement may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
The terms and provisions of this section shall survive any termination of the services agreement for any reason for a period of three years.
- Collection of Information
Datastream collects and uses Customer’s technical and contact information to operate and deliver its services. The Datastream support system holds only technical data, and any contact data as supplied by Customer to Datastream. Datastream will not use this data in any way other than to provide service. Datastream will not share Customer’s information with any third parties, except where Customer has given Datastream permission.
Datastream may also use Customer’s contact information to communicate with Customer by phone, email, fax, and/or mail. Datastream may send certain mandatory service communications such as welcome letters, billing reminders, information on technical service issues, and security announcements. Datastream may also occasionally send Customer satisfaction surveys or promotional mailings to inform Customer of other products or services available from Datastream, its subsidiaries, partners, or affiliates.
In order to fulfill Datastream’s duties and responsibilities of confidentiality, administrative passwords will be retained by Datastream and not released to Customer or other third parties.
To provide its services, it may be necessary for Datastream to have administrative access to Customer’s network.
Unless it receives Customer’s prior written consent, Datastream: (i) will not access or use collected or accessible directly from Customer, (collectively, “Customer Data”) other than as necessary to facilitate service; and (ii) will not give any third party access to Customer Data other than as necessary to facilitate service. Notwithstanding the foregoing, Datastream may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Datastream will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
Customer possesses and retains all right, title, and interest in and to Customer Data, and Datastream’s use and possession thereof is solely as Customer’s agent.
Datastream will not allow any of its employees to access Customer Data, except to the extent that an employee needs access in order to facilitate service.
- Intellectual Property Rights
In the course of the consulting engagement, both parties may use enhancements, discoveries, processes, methods, designs and know-how, whether or not copyrightable or patentable, which both parties conceived during the course of other consulting engagements. In addition, both parties may independently develop enhancements, processes, methods, designs or know-how during the term of this consulting engagement. The parties mutually acknowledge that individually they independently shall own all right, title and interest in and to such enhancements, processes, methods, designs, and know-how including without limitation their respective intellectual property rights relating thereto, and may use such enhancements, processes, methods, designs and know-how in their business operations with other customers, without limitation. Unless otherwise specified, any intellectual property developed during any engagement between Customer and Datastream, shall be considered owned by Datastream.
Without the prior written consent of either party, both parties shall not recruit or hire any personnel who are or have been assigned to perform work until two (2) years after the completion of the engagement in effect between the parties. In the event that either party recruits or hires any personnel who are or have been assigned to perform work in this engagement, the hiring party shall pay within one (1) months of the date of such hiring, an amount equal to twenty-five percent (25%) of the total first-year compensation the other party pays such personnel as a fee for the additional benefit obtained by hiring party.
The term of the services agreement shall commence upon valid digital signature of this document.
Datastream reserves the right to terminate this relationship and/or service at any time without the approval of Customer.
Datastream will be required to provide Customer with at least 30 days written notice prior to terminating its provided services.
Customer shall be subject to the following fees if they terminate any Datastream agreement, while still within the contract period: 50% of remaining fees, per mutually signed Quote.
Customer shall be required to pay these early termination fees, as well as any outstanding invoices, prior to the date of termination. Agreements shall not be considered terminated until all outstanding invoices and early termination fees are paid.
In such case of early termination by Customer, Customer shall be responsible for payment of all products purchased and services rendered, and reimbursement for all out of pocket expenses incurred by Datastream, prior to the date of termination.
Immediately upon termination of any support or consulting services by Customer, all discounts received by Customer in the form of reduced billing will be repaid to Datastream, prior to the date of termination.
If either party terminates this Agreement, Datastream will assist Customer in the orderly termination of services.
Customer shall at all times indemnify and hold Datastream harmless against and from all losses, liability, expenses, and other detriments of every nature and description to which Datastream may be subjected by reason of the sole negligence of Customer.
Datastream shall at all times indemnify and hold Customer harmless against and from all losses, liability, expenses, and other detriments of every nature and description to which Customer may be subjected by reason of the sole negligence of Datastream.
In no event shall Datastream be held liable for indirect, special, incidental or consequential damages arising out of service provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs.
Under no circumstances will Datastream’s total liability of all kinds arising out of or related to this Agreement (including but not limited to Warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amount paid by Customer to Datastream during the 12 months immediately preceding the claim (determined as of the date of any final judgment in any action).
Datastream is an independent contractor. Neither Datastream nor Customer are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation. Datastream shall retain the right to perform work for others during the term of the consulting engagement.
The services agreement shall be governed by, and construed in accordance with the laws of the State of California. Except as provided in Section 15 below, Customer and Datastream consent to the jurisdiction of the state courts of the State of California located in Los Angeles County and U.S. District Court for the Central District of California.
Each party acknowledges that it has read the services agreement and terms and conditions, and further agrees that the services agreement and the terms and conditions are the complete and exclusive statement of the parties and supersedes and merges all prior proposals understandings and agreements, oral or written, between the parties relating to the subject matter hereof, including without limitation, the terms of any Customer request for proposal or the standard printed terms on any Customer purchase order. No modification, amendment, supplement to or waiver of this services agreement or terms and conditions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
In the event any one or more of the provisions of this services agreement or terms and conditions is held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired.
Except for collection actions for payment of fees and for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this services agreement or to its breach shall be settled by arbitration by a single arbitrator in accordance with American Arbitration Rules, pursuant to an arbitration held in Los Angeles County, California, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to receive from the other party its attorney’s fees and costs incurred in connection with any action, proceeding or arbitration hereunder.
This agreement may be modified by a signed written addendum by both parties.
Agreement is designed to cover the support needs of Customer during normal operating conditions. Datastream shall not be liable for damages, delay, or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of either party.
Furthermore, damage and/or significant problems that result from anomalies and/or abnormal circumstances such as fire, flood, electrical surges, deliberate malicious acts, theft, acts of God, wars, insurrections, and/or any other cause beyond the reasonable control of either party fall outside the terms of Agreement.
All of the provisions of this agreement are solely for the benefit of the parties hereto, and none of the other provisions of this entire agreement shall inure to the benefit of any person not a party to the agreement, and third parties shall have no rights hereunder.
Each party acknowledges that it has read Exhibit B (“Terms & Conditions”), and further agrees that the Terms & Conditions are the complete and exclusive statement of the parties and supersedes and merges all prior proposals understandings and agreements, oral or written, between the parties relating to the subject matter hereof, including without limitation, the terms of any Customer request for proposal or the standard printed terms on any Customer purchase order. No modification, amendment, supplement to or waiver of this Terms & Conditions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
Customer and Datastream agree that in the event any term, covenant or condition herein contained is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant or condition shall in no way affect any other term, covenant or condition herein contained. Headings, titles and paragraph captions are inserted in the agreement for convenience, are descriptive only, and shall not be deemed to add to or detract from or otherwise modify the meaning of the paragraphs.
In the event of any conflict between the terms of this agreement and any other agreement between Customer and Datastream, the terms of this agreement will govern.