This Master Services Agreement (“MSA”) is between Tigunia, LLC (“Tigunia”) and the Client ordering the Services (“Client”), each a “party” and together the “parties”. By purchasing Tigunia’s products or subscribing to Tigunia’s services, Client agrees that it has read and agrees, without reservations, to be bound by the latest version of this MSA.
This Master Services Agreement (“MSA”) is between Tigunia, LLC (“Tigunia”) and the Client ordering the Services (“Client”), each a “party” and together the “parties”. By purchasing Tigunia’s products or subscribing to Tigunia’s services, Client agrees that it has read and agrees, without reservations, to be bound by the latest version of this MSA.
1. DEFINED TERMS. The defined terms in Schedule 1 shall be applicable to the Agreement.
2. SERVICES AND SOFTWARE PURCHASES.
2.1. Tigunia shall provide the Services in accordance with this Agreement and all laws applicable to Tigunia. Tigunia’s obligation to provide Services is contingent on verification that Client at all times satisfies Tigunia’s credit approval criteria. Tigunia shall have no obligation to provide Services for Client Configurations that do not meet the Tigunia Configuration Requirements. Tigunia shall provide support only to those individuals designated by Client and is not required to provide any support directly to Client’s end users. Client remains liable for the acts and omissions of Client’s end users.
2.2. Client may use the Services for commercial purposes only for itself and its Affiliate’s Client Data. Client may not use the Services in any situation where failure or fault of the Services or the Client Configuration could lead to death or serious bodily injury of any person or physical or environmental damage.
2.3. All services hereunder shall be rendered in accordance with Tigunia’s Service Level Agreement.
2.4. Tigunia will comply with all applicable federal, state, and local laws, rules, and regulations.
2.5. The pre-printed terms of Client’s purchase order or other business form or terms that Client provides to Tigunia shall be void and of no effect.
2.6. Client agrees to the following terms regarding the purchase of Microsoft subscription software:
- Subscription licenses can be canceled up to 7 days (168 hours) after first being provisioned. The charges will be prorated based on the time that has passed since the license was issued.
- Client can add licenses at any time, but the license count can only be reduced at the end of the subscription term, and upon at least 30 days written notice to Tigunia prior to the renewal date.
- Subscription licenses will automatically renew for subsequent terms unless Client provides at least 30 days written notice to Tigunia prior to the renewal date. Tigunia does not provide notice of automatic subscription renewals.
- Client agrees to be solely responsible for the cost of the entire subscription license term, and to the terms of the software publisher’s end user license agreement.
2.7. In the event of a conflict between the terms referenced in this MSA and any other services agreement between Tigunia and Client, the terms of this MSA shall prevail. The terms of any Statement of Work, Change Order, or similar Service Order shall supersede any conflicting terms in any other Client agreement, and may not be altered by Client unless Tigunia expressly agrees to same in writing.
3. CLIENT OBLIGATIONS.
3.1. For Services where Tigunia’s access to the Client Configuration is necessary to perform the Services, Client shall grant Tigunia a reasonable method to access the Client Configuration. Client shall cooperate with Tigunia’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement.
3.2. Client agrees to comply with the following:
- Client use of any Hosted System shall comply with the AUP.
- Client is responsible for keeping its account permissions, billing, and other account information up to date.
- Client is responsible for determining the suitability of the Services and Client’s compliance with any applicable laws, including export laws and data privacy laws.
- Client is responsible for ensuring the integrity and security of Client Data, and for regularly backing up and validating the integrity of backups of Client Data on an environment separate from the Client Configuration. Tigunia shall only back up data to the extent stated on a Service Order.
- Client is responsible for understanding and complying with its contractual obligations to Tigunia.
- Client is responsible for notifying Tigunia of changes made to technical or administrative contact information.
- Client is responsible for maintaining its own system(s) of record.
- Client is responsible for ensuring the supervision, management, and control of the use of Tigunia services by Client’s personnel.
- Client is responsible for developing its own disaster recovery and business continuity plans that address the inability to access or utilize Tigunia services.
- Client is responsible for providing Tigunia with a list of approvers for security and system configuration changes for data transmission.
- Client is responsible for immediately notifying Tigunia of any actual or suspected information security breaches, including compromised user accounts, including those used for integrations and secure file transfer.
5. INTELLECTUAL PROPERTY.
5.1. Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If Client provides Tigunia with its Client IP, Client hereby grants to Tigunia, during the term of the applicable Service Order, a limited, worldwide, non-exclusive, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Client IP solely for the purpose of providing the Services. Client represents and warrants that Client has all rights in the Client IP necessary to grant this license, and that Tigunia’s use of Client IP shall not infringe on the Intellectual Property rights of any third party.
5.2. Proprietary Rights; Deliverables. Unless otherwise specifically stated in the applicable Service Order, and excluding any Client IP, as between the parties, Tigunia shall own all Intellectual Property created in providing the Services or contained in the Deliverables. Subject to Client’s compliance with the terms of the Agreement, Tigunia grants to Client a limited, worldwide, non-exclusive, non-transferable, royalty-free right and license (without the right to sub-license) to use:
- Any Intellectual Property provided by Tigunia to Client as part of the Services (excluding any Third-Party Software and Open Source Software and Deliverables) solely for Client’s internal use and as necessary for Client to enjoy the benefit of the Services during the term of the applicable Service Order; and
- Any Intellectual Property provided by Tigunia to Client as part of the Deliverables (excluding any Tigunia, Third-Party, and Open Source Software) solely for Client’s internal use in perpetuity.
5.3. Open Source. In the event Tigunia distributes or otherwise provides for Client use any Open Source Software to Client as part of the Services and/or Deliverables, then such Open Source Software is subject to the terms of the applicable open source license. To the extent there is a conflict between this MSA and the terms of the applicable open source license, the open source license shall control and shall govern the use of that software.
5.4. Third-Party Software. Tigunia may provide Third Party Software for Client’s use as part of the Services and/or Deliverables or to assist the delivery of the Services. Unless otherwise permitted by the terms of the applicable license, Client may not: (i) assign, grant, or transfer any interest in the Third Party Software to another individual or entity; (ii) reverse engineer, decompile, copy, or modify the Third Party Software; (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software; or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing the Agreement. Client may only use Third Party Software provided for its use as part of the Services (identified on the Service Order) on the Client Configuration on which it was originally installed, subject to any additional restrictions identified in the Product Terms or Service Order. Client shall not be permitted to access any Third-Party Software that Tigunia installs solely to assist Tigunia’s delivery of the Services. Upon termination of the Service Order, Client shall permit removal of any Third-Party Software installed by Tigunia or its Representatives on the Client Configuration. Tigunia makes no representation or warranty regarding Third Party Software except that Tigunia has the right to use or provide the Third Party Software. The use of any software is governed by the applicable end use license agreement(s).
5.5. Client Provided Licenses. If Client uses any non-Tigunia provided software on the Client Configuration, Client represents and warrants to Tigunia that Client has the legal right to use the software. If Tigunia has agreed to install, patch, or otherwise manage software in reliance on Client’s license with a vendor, then Client represents and warrants that it has a written license agreement with the vendor that permits Tigunia to perform these activities. Tigunia’s obligation to install, patch, or otherwise manage Client provided software is strictly contingent on Client maintaining original software vendor support or similar authorized support that provides a services request escalation path, access to patching, and software upgrades, as applicable. Upon Tigunia’s request, Client shall certify in writing that Client is in compliance with the requirements of this section and any other software license restrictions that are part of the Agreement, and shall provide evidence of Client’s compliance as Tigunia may reasonably request. If Client fails to provide the required evidence of licensing to Tigunia, and continues to use the software, Tigunia may: (i) charge Client its standard fee for the use of the software in reliance on Tigunia’s licensing agreement with the vendor until such time as the required evidence is provided, or (ii) suspend or terminate the applicable Services.
5.6. Infringement. If the delivery of the Services or provision of Deliverables infringes the Intellectual Property of a third party and Tigunia determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverables such that they do not infringe, then Tigunia may terminate the infringing Services and/or Deliverables on 90-days notice, and shall not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of the Services and/or Deliverables deemed infringing).
6.1. Fees. Client shall pay the Fees due within 15 days from the invoice date. Client shall not require the issuance of its own purchase order for Client to be obligated to pay Tigunia’s invoices. If Client’s undisputed payment is overdue by 30 days or more, Tigunia may suspend the associated Services and any other services Client receives from Tigunia upon written notice. Tigunia shall undertake collection efforts in writing prior to suspension. Invoices that are not disputed in writing within 10 days of the invoice date are conclusively deemed to be accepted as accurate by Client. Client shall pay the Fees in the currency identified on the Service Order without setoff, counterclaim, deduction, or withholding. Tigunia may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge Client for any cost or expense arising out of Tigunia’s collection efforts. Tigunia may require Client to prepay for any services, software, or hardware, in its sole discretion.
6.2. Fee Increases. Unless stated to the contrary in a Service Order or Statement of Work, Tigunia may increase the Fees by giving at least 30 days advance written notice prior to or following the expiration of the Initial Term or any Renewal Term (including during any Auto-Renewal Term). In the event of a Third-Party Fee Increase, Tigunia may increase Client’s Fees by the same percentage amount by giving at least 30 days advance written notice. If Client continues to use any Services following termination of the Agreement or Service Order, Client shall be responsible for payment of Fees for such Services at Tigunia’s then-current market rates.
6.3. Taxes. All amounts due to Tigunia under this MSA are exclusive of Tax. Client shall pay Tigunia any Tax that is due or provide Tigunia with satisfactory evidence of Client’s exemption from the Tax in advance of invoicing. Client shall provide Tigunia with accurate and adequate documentation sufficient to permit Tigunia to determine if any Tax is due. All payments to Tigunia shall be made without any withholding or deduction for any taxes except for Local Withholding Taxes. Client agrees to timely provide Tigunia with accurate factual information and documentation of Client’s payment of any such Local Withholding Taxes. Tigunia shall remit such cost to Client in the form of a credit on Client’s outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes.
6.4. Reimbursement for Expenses. Unless otherwise agreed in the Service Order, if any of the Services are performed at Client’s premises, Client agrees to reimburse Tigunia for the actual substantiated out-of-pocket expenses of its Representatives.
6.5. Client’s Data. Client will be solely responsible for the entirety of client’s data, database and system backups, system security, including without limitation, virus, malware, or ransomware attacks, and system performance issues, except where Tigunia agrees to perform specific data or IT services pursuant to a Statement of Work. For the sake of clarity, Tigunia will not be responsible for any IT systems, data failures, or issues for which Client has not retained Tigunia to support, or where Client is the sole cause of any IT systems failures or data issues. Additionally, in the event that Client has retained Tigunia to store or back up Client’s data, Tigunia will not be responsible for client’s data subsequent to Client failing to remit payment for such service, provided that Tigunia will send written notice via email to the last known contact person(s) for Client of Tigunia’s intent to delete such data by a date certain. Tigunia will provide five (5) days’ notice of Client’s opportunity to cure such a default, and thereafter, Tigunia may irretrievably destroy Client’s data, in Tigunia’s sole discretion.
7.1. Tigunia makes no commitment to provide any services other than the Services stated in the Service Order. Tigunia is not responsible to Client or any third party for unauthorized access to Client Data or for unauthorized use of the Services that is not solely caused by Tigunia’s failure to meet its security obligations in section 4. To the maximum extent permitted by law, Tigunia disclaims all responsibility for any situation where the security, availability, or stability of the Services is compromised by: (i) actions of Client or any end user; (ii) software provided by Client, or (iii) any actions taken by Tigunia that are requested by Client and not based on the written advice or recommendation of Tigunia. Tigunia shall not be liable for any failure to comply with its obligations in the Agreement to the extent that such failure arises from a failure of Client to comply with its obligations under this Agreement.
7.2. Tigunia may designate certain Services as Unsupported Services. Tigunia makes no representation or warranty with respect to Unsupported Services except that it shall use reasonable efforts as may be expected of technicians having generalized knowledge and training in information technology systems. Tigunia shall not be liable to Client for any loss or damage arising from the provision of Unsupported Services and SLA(s) shall not apply to Unsupported Services, or any other aspect of the Client Configuration that is adversely affected by Unsupported Services. At Client’s request, Tigunia may provide services that are not required by the Agreement. Any such services shall be provided AS-IS with no warranty whatsoever.
7.3. Tigunia and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
7.4. Except as expressly provided herein, Tigunia makes no representation or warranty whatsoever regarding Open Source Software or with regard to any third-party products or services that Tigunia may recommend for Client’s consideration. Third-Party Software (“TPS”) Agreements are independent and separate from the Agreement, and Tigunia is not a party to and is not responsible for the performance of any TPS Agreements.
8. TERM AND TERMINATION.
8.1. Term. This MSA shall continue until terminated in accordance with its terms. Service Orders for Recurring Services may not be terminated prior to the end of the agreed upon term, unless expressly agreed upon in writing by Tigunia. Service Orders for Recurring Services shall be subject to the Auto Renewal Term unless: (i) otherwise stated in the Service Order, (ii) the parties enter into an agreement for a Renewal Term, or (iii) either party provides the other with written notice of termination at least 90 days prior to the expiration of the full term.
8.2. Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, Client may terminate all or part of any Service Order for convenience at any time by giving Tigunia at least 90 days advance written notice; subject to an early termination fee equal to the monthly recurring Fee times the number of months remaining in the then current term of the Service Order for the Services that have been terminated.
8.3. Termination for Cause.
- Either party may terminate the MSA and/or the affected Service Order(s) for cause on written notice if the other party materially breaches the Agreement and, where the breach is remediable, does not remedy the breach within 30 days of the non-breaching party’s written notice describing the breach.
- Tigunia may terminate the Agreement and/or the applicable Service Order(s) for breach on written notice if, following suspension of Client’s Services for non-payment, payment of any invoiced undisputed amount remains overdue for a further (10) ten days.
- Subject to applicable law, either party may terminate the MSA and any Service Order(s) on written notice if the other party enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts.
- Notwithstanding anything to the contrary in the Agreement, the Fees for the Services through the conclusion of all Service Order(s) shall become due immediately in the event Tigunia terminates the MSA in accordance with this section 8.3.
8.4. Professional Services Agreement. The cancelation terms of Tigunia’s Professional Services Agreement or Master Services and Hosting Agreement shall not apply to Service Orders, software purchases, or any other document of similar purpose.
9. CONFIDENTIAL INFORMATION.
Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under the Agreement, or as required by law; and shall use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this MSA; (ii) as required by law; (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice; or (iv) with the other party’s consent.
10. LIMITATIONS ON DAMAGES.
10.1. TIGUNIA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ANY LOSS OF REVENUE OR PROFITS, INTERRUPTION OF BUSINESS, OR LOSS OF DATA OR DATA USE, OR SIMILAR DAMAGES THAT CLIENT MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT, EVEN IF TIGUNIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TIGUNIA’ MAXIMUM COLLECTIVE AGGREGATE LIABILITY FOR ANY DIRECT, COMPENSATORY, OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO TIGUNIA FOR THE SERVICES (AND NOT FOR ANY PRODUCTS OR SOFTWARE) THAT ARE THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT(S) THAT FIRST GAVE RISE TO THE CLAIM. ANY DAMAGE AWARD IN FAVOR OF CLIENT SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CLIENT AND SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY STATED HEREIN. THE LIMITATIONS SET FORTH IN THIS SECTION 10.1 SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. AT NO TIME SHALL THE SUM OF CLIENT’S DAMAGES EXCEED THE AMOUNT OF INSURANCE PURCHASED BY TIGUNIA DURING THE TIME THAT INSURANCE IS RECOVERABLE.
10.2. TIGUNIA SHALL NOT BE LIABLE FOR ANY FAILURE TO COMPLY WITH ITS OBLIGATIONS IN THIS AGREEMENT TO THE EXTENT THAT SUCH FAILURE ARISES FROM A FAILURE OF CLIENT TO ABIDE BY ITS OBLIGATIONS UNDER THIS AGREEMENT.
10.3. As an essential part of the Agreement, the liquidated damages payable under the SLA(s) shall be the credits stated in any applicable SLA(s) that are Client’s sole and exclusive remedy for Tigunia’s failure to meet those guarantees for which credits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable, and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) for failures to meet any applicable SLA(s) for any calendar month shall not exceed 100% of the then current monthly recurring Fee for the Services. Client is not entitled to a credit if Client is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit, until such time as Client has remedied the breach. No credit shall be due if the credit would not have accrued but for Client’s action or omission.
11.1. If Tigunia, its Affiliates, or any of its or their respective Representatives (collectively, the “Indemnitees” or “Indemnified Parties”) are faced with a claim by a third party arising out of Client’s breach of a TPS Agreement, end user agreement, AUP, security obligation or section 5.5, then Client shall hold Tigunia harmless and pay the cost of defending the claim (including reasonable legal and professional fees and expenses) and any damages, losses, fine, or other penalty that is imposed on or incurred by the Indemnitees as a result of the claim. Client’s obligations under this section include claims arising out of the acts or omissions of Client’s employees, agents, end users, any other person to whom Client has given access to the Client Configuration, and any person who gains access to the Client Configuration as a result of Client’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Client.
11.2. If Tigunia receives notice of a claim that is covered by this section 11, Tigunia shall give Client prompt written notice thereof. Tigunia shall be allowed to conduct the defense of the matter, including choosing legal counsel to defend the claim, provided that the choice is reasonable and is communicated to Client. Client shall comply with Tigunia’s reasonable requests for assistance and cooperation in the defense of the claim. Tigunia may not settle the claim without Client’s consent, which may not be unreasonably withheld, delayed, or conditioned. Client shall pay costs and expenses due under this section 11 as Tigunia incurs them.
12. NOTICES. Client’s routine communications to Tigunia regarding the Services should be sent to Client’s account team and to firstname.lastname@example.org. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, Client shall send it by electronic mail and overnight postal service to:
Bret Weber, Manager
Address: P.O. Box 31014, Edmond, OK 73003
Tigunia’s routine communications regarding the Services and legal notices shall be sent by email or post to the individual(s) Client designates as contact(s) on Client’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices shall be given in the English language.
13. PUBLICITY, USE OF MARKS. Client agrees that Tigunia may not publicly disclose that it is providing Services to Client and may not use Client’s name and logo to identify Client in promotional materials, including press releases without Client’s prior written consent. Client may not issue any press release or publicity regarding the Agreement, use the Tigunia name or logo or other identifying indicia, or publicly disclose that it is using the Services without Tigunia’s prior written consent.
14. ASSIGNMENT/SUBCONTRACTORS. Neither party may assign the Agreement or any Service Orders without the prior written consent of the other party, except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. Tigunia may use its Affiliates or subcontractors to perform all or any part of the Services, but Tigunia remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Tigunia performed the Services itself.
15. FORCE MAJEURE. Neither party shall be liable or be in breach of the Agreement (excluding in relation to the Client’s payment obligations) if the failure to perform the obligation is due to an event beyond its control, including significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, fire, acts or orders of government, war, riot, insurrection, epidemic, strikes or labor action, or terrorism.
16. GOVERNING LAW.
16.1 This Agreement shall be governed by, and construed as a whole in the accordance with the fair meaning of, the applicable laws of the State of Oklahoma, exclusive of any choice or conflict of law principle that would require the application of the law of a different jurisdiction, as well as the copyright, patent, and trademark laws of the United States.
16.2 Prior to and as a condition of either party filing a claim pursuant to this Agreement, an officer of each party shall telephonically communicate in good faith to attempt to informally resolve all matters.
16.3 In the event of an impasse, Client hereby consents to the exclusive jurisdiction of the State and Federal courts located in Oklahoma, and irrevocably waives any objections regarding venue and forum non conveniens therein. The prevailing party in any action or proceeding relating to the Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees incurred in connection with enforcing, defending, or otherwise protecting its interests hereunder. In the event of an account delinquency, Client consents to be contacted by a collection agency, including without limitation, an Automated Telephone Dialing System, as defined by the Telephone Consumer Protection Act of 1991 (as amended), 47 U.S.C. Section 227, as well as by email, text, and voicemail, and to be charged collection agency fees.
16.4 NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES’ ACCEPTANCE OF SERVICES UNDER THIS AGREEMENT.
16.5 No claim may be brought as a class or collective action, nor may Client assert such a claim as a member of a class or collective action that is brought by another claimant. Each party agrees that it shall not bring a claim under the Agreement more than one (1) year after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
16.6 Pursuing a claim against Tigunia, LLC is the Client’s sole and exclusive remedy for any breach under this Agreement. Client knowingly and voluntarily waives its right to name as a defendant or seek relief against any Affiliate of Tigunia, as well as any past or present managers, directors, officers, employees, agents, or other representatives and any of their successors or heirs of Tigunia or an Affiliate (each, an “Excluded Person”). Each Excluded Person is an express third-party beneficiary of this clause, and, as such, each Excluded Person may enforce the provisions of this clause directly.
17.1. If there is a conflict between the terms of the Agreement, the documents shall govern in the following order: the Service Order, the Product Terms, and the MSA. The headings or captions in the Agreement are for convenience only. If over time Client enters into multiple agreements for a given Client Configuration (for example to add additional components or services) then the most recent terms referenced in the Service Order(s) shall govern the entirety of the Services for the given Client Configuration.
17.2. Unless otherwise expressly permitted in the Agreement, the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. A Service Order may be amended to modify, add, or remove Services by a formal written agreement signed by both parties, or by an exchange of correspondence (including via the Tigunia ticketing system: email@example.com) that includes the express consent of an authorized individual for both parties. The pre-printed terms of Client’s purchase order or other business form or terms that Client provides shall be void and of no effect.
17.3. If any part of the Agreement is found unenforceable, the rest of the Agreement shall continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. The parties acknowledge and agree that the pricing and other terms in the Agreement reflect and are based upon the intended allocation of risk between the parties and form an essential part of the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. Other than Representatives for the purposes of Sections 7, 10, 11, and 16, or as otherwise specifically designated a “Third Party Beneficiary”, there are no third-party beneficiaries to the Agreement. The use of the word “including” means “including without limitation”.
17.4. The following provisions shall survive expiration or termination of this MSA: Intellectual Property, Confidential Information, Limitation on Damages, Indemnification, Notices, Governing Law, Miscellaneous, all terms of the Agreement requiring Client to pay any Fees for Services provided prior to the time of expiration or termination or requiring Client to pay an early termination Fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
17.5. The Agreement, together with any other document that references this Agreement, constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.
17.6. Tigunia and Client will comply with all applicable federal and state laws and regulations, as well as all privacy and data protection laws, including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
17.7 The language, terms, conditions, and provisions of this Agreement are the result of negotiations between the Parties, and this Agreement will not be construed in favor of or against any Party for any reason.
17.8 The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
17.9 Any notice, consent, waiver, or other communication that is required or permitted hereunder shall be sufficient if it is in writing, signed on behalf of the party giving such notice, consent, waiver or other communication.
17.10 Wherever possible, each provision of this Agreement is to be interpreted in such a manner as will be effective and valid under applicable law, but if any provision of this Agreement is prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
18. HOURS OF OPERATION.
Tigunia Support is available from 7:00 a.m. to 7:00 p.m, Central Time, Monday through Friday, except for federal holidays. You can reach our Support team by phone at 866-562-8911, or you can create a support ticket by emailing firstname.lastname@example.org.
“Affiliate” as to Client means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity referred to, but only for so long as such control exists; and as to Tigunia means Tigunia, LLC and any entity that is directly or indirectly controlled by Tigunia. As used in this definition “control” means control of more than a 50% interest in an entity.
“Agreement” means, collectively, this MSA and any applicable Service Order, Product Terms, or other addenda which govern the provision of Services or Software.
“AUP” means Tigunia’s Acceptable Use Policy, found at www.tigunia.com/legal-notices/.
“Auto Renewal Term” means the automatic renewal period following expiry of the Initial Term, for consecutive rolling 90-day terms.
“Business Day” means Monday through Friday, excluding public holidays, in the country whose laws govern the Agreement.
“Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, Clients, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
“Client” means the Client and its Affiliates.
“Client Configuration” means an information technology system (hardware, software and/or other information technology components) which is the subject of the Services or to which the Services relate.
“Client Data” or “Client Content” means all data which Client receives, stores, or transmits on or using the Client Configuration.
“Client IP” means Client’s pre-existing Intellectual Property.
“Deliverables” means the tangible or intangible materials which are prepared for Client’s use in the course of performing the Services and that are specifically identified and described in a Service Order as Deliverables. “Fees” means the fees payable under the applicable Service Order.
“Hosted System” means a Client Configuration provided by Tigunia for Client’s use at a Tigunia or other mutually agreed upon data center.
“Initial Term” means the initial term of the applicable Service Order.
“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Local Withholding Taxes” means withholding (or similar) taxes imposed on income that may be attributable to Tigunia in connection with its provision of the Services that Client is legally required to withhold and remit to the applicable governmental or taxing authority.
“One Time Services” means Services which are provided on a one-off basis.
“Open Source Software” means open source software including Linux, OpenStack, and software licensed under the Apache, GPL, MIT, or other open source licenses.
“Product Terms” or “Service Schedule(s)” means additional terms and conditions incorporated in a Service Order which contain product-specific obligations.
“Tigunia” or “we” means the Tigunia Affiliate identified in the Service Order, or if none is identified: (i) Tigunia, LLC .
“Tigunia Configuration Requirements” means those specifications identified by Tigunia as required to perform the Services, such as a required reference architecture or software version, as described in Client’s Service Order, Product Terms, or Statement of Work.
“Recurring Services” means Services which are provided on an on-going basis. “Renewal Term” means a fixed term extension of the Service Order term.
“Representatives” means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
“Sensitive Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data); PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person; (ii) financial records; and (iii) other sensitive or regulated information.
“Services” means the Tigunia services identified in a specific Service Order, Order Form, Statement of Work, Change Order, or Software Estimate, or other addenda which govern the provision of Services or Software.
“Service Order” or “Order Form” or “Statement of Work” or “Change Order” or “Software Estimate” or any document of similar purpose means the document describing the Services Client is purchasing, including without limitation, any order, process, API, statement of work, or tool through which Client requests or provisions Services.
“SLA” means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
“Tax” means any value added, goods and services, sales, use, property, excise, and like taxes, import duties and/or applicable levies arising out of the provision of the Services.
“Third Party Fee Increase” means the direct or indirect increase of fees by a third-party license provider charged to Tigunia for Client’s use of Third-Party Software.
“Third Party Software” means third party software applications or services used in connection with the Services.
“TPS Agreements” means agreements for products and services provided by third parties, which are entered into directly between Client and such third party.
“Unsupported Services” means Services designated by Tigunia as “best efforts”, “non-standard”, “reasonable endeavors”, “unsupported”, or with like designation in a Service Order.