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Master Service Agreement

This Master Services Agreement (“Agreement”) is entered into between Capital Data, Inc.,  a Wisconsin corporation (“Capital Data”) and the Customer (“Customer”).

This Agreement sets forth the terms under which Capital Data will provide Customer with certain information technology services as more specifically identified in the applicable Statement of Work and any future Statements of Work for services executed by the parties (collectively, the “Services”).

Table of Contents

1. Services
2. Fees; Taxes
3. Customer Responsibilities
4. Proprietary Rights
5. Limited Warranties
6. Liability; Indemnity
7. Confidential Information
8. Term and Termination
9. General Provisions

1. SERVICES

1.1 Scope of Services. Capital Data agrees to provide the Services in accordance with the terms and conditions of this Agreement and the applicable Statement(s) of Work. Capital Data shall not use subcontractors to perform any of its obligations hereunder unless authorized in writing by Customer. Capital Data shall remain fully liable and responsible for any of its subcontractor’s actions or inactions.

1.2 Change Orders. The parties may modify the scope of Services set forth in a Statement of Work upon mutual agreement and execution of a change order form identifying the change in Services and the applicable change in fees, charges, timeline for completion and any other material variables impacted by the change in    No changes may be made to the scope of Services without a mutually approved change order executed by both parties; provided, however that Capital Data may undertake any emergency Services requested by Customer on short notice and all such Services shall be deemed approved by Customer regardless of whether a change order was executed.

2. FEES; TAXES

2.1 Fees. Customer shall pay the fees and charges specified in the applicable Statement of Work. All fees are due within thirty (30) days of receiving the invoice.

2.2 Taxes. Customer shall pay or reimburse Capital Data for all sales, use, transfer, excise, franchise and all other taxes and duties which are levied or imposed arising from performance of this Agreement, excluding income taxes levied against Capital Data.

3. CUSTOMER RESPONSIBILITIES

3.1 Customer Authorized Contact. Customer shall identify in the Statement of Work those individuals authorized to be Capital Data’s primary Customer contacts. Customer represents that those individuals have authorization to make decisions on behalf of Customer and may be relied upon by Capital Data when providing the Services.

3.2 Customer Resources. Except as otherwise expressly provided in a Statement of Work, Customer shall be responsible for furnishing, at its own expense, all Customer personnel, all equipment, computer hardware, software, telecommunications connectivity, physical work environment and related materials and appropriate and safe work spaces for Capital Data to perform the Services at Customer’s facilities. Customer shall also provide Capital Data with access to all information, data, and facilities requested by Capital Data that are necessary for Capital Data to perform the Services. Customer may deny or restrict access for any reason at any time, however if access to information, data, or facilities is denied or restricted for a significant time period, Customer understands that Capital Data may be unable to perform its duties adequately and if such a situation should exist.

3.3 Customer Equipment. Except as otherwise provided in a Statement of Work, Customer shall be responsible for its equipment and shall provide a suitable working environment for all equipment located at Customer’s or its third party vendor facilities. Except as otherwise provided in a Statement of Work, Customer shall be responsible for the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of equipment at Customer’s facilities. For the avoidance of doubt, this Section 3.3 shall not apply to equipment that Customer purchases from or through Capital Data.

3.4 Customer Software. If Capital Data is required to install, access, modify or replicate Customer software as part of the Services, Customer will use reasonable efforts to verify that all such software is properly licensed, expect as otherwise provided in a Statement of Work. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software, except as otherwise provided in a Statement of Work. For the avoidance of doubt, this Section 3.4 shall not apply to software that Customer purchases through or from Capital Data.

3.5 Customer Data. Except as otherwise provided in a Statement of Work, Customer shall be responsible for completing a backup of all existing data, information, materials, content, software and programs (collectively, “Customer Data”) on all affected systems prior to and during the delivery of Services. Capital Data will not be responsible for any acts or omissions of Client or third parties not authorized by Capital Data that may adversely affect Customer Data. If Capital Data’s actions cause the loss or unauthorized modification of Customer Data, then Capital Data will be responsible for the restoration and reinstallation of any Customer Data.  Except as otherwise expressly provided within a Statement of Work, Customer shall be responsible for maintaining adequate backup for all Customer Data and for maintaining appropriate disaster recovery / business continuity plans for its business operations.  Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.

3.6 Changes in Customer Environment. From time to time either Customer or Capital Data may identify additional equipment, software or other resources to be purchased or changes in Customer’s systems or technology environment that may assist Capital Data to meet Customer’s requirements. In the event that Customer purchases any assets, including computer hardware and/or software, in connection with Capital Data providing the Services, all such assets will remain the sole property of Customer unless the parties agree  otherwise in writing. Customer will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that Capital Data may use the item or service. The foregoing sentence shall not apply to any equipment, software, or Services purchased from or through Capital data.  If any substantial changes in Customer’s systems or technology environment result in a change to the scope of Services to be provided by Capital Data, the parties agree to negotiate any such changes in good faith and to execute an appropriate change order for the Statement of Work.  Neither party shall be obligated to implement any such changes until finalization of execution of the change order.

3.7 Timeliness. Capital Data will provide the Services in a timely manner consistent with any deadlines identified in the Statement of Work. The Services are dependent on timely receipt from Customer of all necessary items and authorizations to be supplied by it as identified in the applicable Statement of Work. In the event of a delay in the performance of Services by Customer, any estimated completion date will be deferred for a period equal to the time lost by reason of the delay.

3.8 Customer Cooperation. Customer understands that without prompt and adequate cooperation that is necessary to complete the Services, Capital Data will not be able to perform the Service or, if performed, the Service may be delayed. Accordingly, Customer will promptly and reasonably provide Capital Data with all cooperation necessary for Capital Data to perform the Service as identified in the Statement of Work. If Customer does not provide reasonably adequate cooperation in accordance with the foregoing, Capital Data will not be responsible for any failure to perform the Service and Customer will not be entitled to a refund.

3.9 Onsite Obligations. Where Services require on-site performance, Customer will provide (at no cost to Capital Data) free, safe and sufficient access to Customer’s facilities and environment, including ample working space, electricity, safety equipment (if applicable) and a local telephone line.

3.10 Third Party Warranties. These Services may require Capital Data to access hardware or software that is not manufactured by Capital Data. Capital Data does not take responsibility for third party warranties or for any effect that the Services may have on those warranties. This Section 3.10 shall not apply to any software or hardware that Customer purchases from or through Capital Data.

4. PROPRIETARY RIGHTS

4.1 Intellectual Property. Capital Data may use preexisting proprietary software, methodologies, techniques, libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how or other intellectual property owned by Capital Data or its licensors in the performance of the Services (all of the foregoing, “Capital Data IP”). Capital Data IP shall not include (a) any Customer Confidential Information or (b) any third party manufactured software or equipment that Customer purchases through or from Capital Data. Customer agrees that any and all proprietary rights to Capital Data IP as it existed as of the date hereof and as it may be modified or created in the course of providing the Services provided that no Customer Confidential Information is incorporated into such Capital Data IP, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of Capital Data, free from any claim or retention of rights thereto on the part of Customer, and Customer hereby assigns to Capital Data any rights it may have in any of the foregoing.

4.2 Customer Rights to Work Product. Except as otherwise provided in a Statement of Work, the parties intend that Customer will be the owner of all work product created exclusively for Customer by Capital Data under this Agreement and such work product shall be considered “work made for hire”, subject to the following: (a) Capital Data retains all right, title, interest and ownership of all Capital Data IP incorporated into or included within any such work product and (b) all third party materials incorporated into any work product shall be subject to the rights of such third parties. Capital Data hereby irrevocably assigns and agrees to assign all of its respective rights, title and interest in such work product (including without limitation all intellectual property rights therein) to Customer. Capital Data agrees to execute such documents of assignment or take such other action as Customer may reasonably request to evidence, perfect or effect the transfer, recordation or protection of such work product. Capital Data will not incorporate any third party materials without Customer’s written authorization.  Capital Data hereby grants to Customer a non-exclusive, non-transferable, worldwide, perpetual, fully paid-up, royalty free license to use the Capital Data IP delivered with work product solely as it may be incorporated therein and only for Customer’s own internal business purposes.

4.3 Restrictions. Customer will not copy, use, modify, or distribute any Capital Data IP except as expressly permitted in Section 4.2 above. Customer will not cause or permit the modification, distribution, reverse engineering, decompilation, disassembly or other translation of Capital Data IP. Customer will not alter, change, or remove from Capital Data IP any identification, including copyright and trademark notices, and further agrees to place all such markings on any copies thereof.

4.4 Intellectual Property Claims. Capital Data shall indemnify, defend, and hold harmless Customer against any claims that Capital Data’s proprietary software or work product used to provide the Services, or Customer’s use thereof, infringes any third party’s intellectual property or other legal rights provided that Capital Data is given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim.  Capital Data’s response to any such claim shall be, at Customer’s option, to: (a) modify the infringing component of the software or work product so as to make it non-infringing provided it remains functionally equivalent; (b) secure the right to use the infringing component of the software or work product; or (c) refund any fees prepaid by Customer for the Services and terminate this Agreement without further liability.  Customer shall indemnify and defend Capital Data against third party claims that the Customer Data infringes any intellectual property rights of third parties provided that Customer is given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim.

5. LIMITED WARRANTIES

5.1 Customer Warranties. Customer represents and warrants that it has obtained permission for both Customer and Capital Data to access and use, whether remotely or in-person, necessary Customer-owned or licensed software, hardware, systems, the data located thereon and all hardware and software components included therein, for the purpose of providing these Services. Each party further represents and warrants that it has full authority to enter into this Agreement and perform its obligations hereunder, and each party will access the Services only for lawful purposes and will not violate any laws or regulations or the rights of any third parties in connection with use of the Services.

5.2 Capital Data Warranty. Capital Data warrants to Customer that Capital Data has the authority to enter into this Agreement.  Capital Data further warrants that the Services will conform in all material respects with the service level assurances expressly set forth in the applicable Statement of Work.  Capital Data represents and warrants the following: (a) the Services and work product will confirm to all Capital Data documentation; (b) all Services shall be performed in a timely, professional, workmanlike manner by qualified and properly trained employees; (c) Capital Data shall not subcontract any of its obligations hereunder without Customer’s written authorization; (d) Capital data shall not incorporate any third party or open source materials into work product without Customer’s written permission; (e) the Services, work product, and any software or equipment purchased from Capital Data shall be free from viruses, worms, Trojan horses, malware, time bombs, and any other harmful code; (f) the work product shall not contain any disabling devices, license keys, or similar mechanisms that may be used to remotely or automatically suspend, terminate, or withhold access without Customer’s consent; and (g) the work product and Services will not infringe any third party’s intellectual or other property rights.  In the event of a breach of the warranties made herein, Capital Data shall use best efforts to  promptly remedy the breach.   To the extent that the foregoing remedies are not reasonably attainable, Capital Data shall refund any fees prepaid by Customer for the non-conforming Services.

5.3 Third Party Products / Services. Warranties for third party products and services, if any, are provided by the manufacturers of the products or vendors of the services and not by Capital Data.   Capital Data makes no representations or warranties regarding third party products or services and its sole and exclusive obligation shall be to use best efforts to assist Customer in enforcing any such third party warranties, including any pass-through warranties.

5.4 Disclaimer.

  1. EXCEPT FOR THE WARRANTIES MADE BY CAPITAL DATA IN THIS AGREEMENT, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, ALL SERVICES, EQUIPMENT, DELIVERABLES AND WORK PRODUCT ARE PROVIDED STRICTLY “AS IS.” NEITHER CAPITAL DATA NOR CUSTOMER MAKES ANY ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE SERVICES, EQUIPMENT, DELIVERABLES OR WORK PRODUCT PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND INTEGRATION.
  2. CAPITAL DATA DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT, DELIVERABLES OR WORK PRODUCT WILLOPERATE IN COMBINATION WITH CUSTOMER’S SYSTEMS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY OF THE FOREGOING WILL BE COMPLETELY UNINTERRUPTED OR COMPLETELY ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND PROVIDED THAT CAPITAL DATA NOTIFIES CUSTOMER THAT SUCH SOFTWARE IS PRE-PRODUCTION.

6. LIABILITY; INDEMNITY

6.1 Limitation. NEITHER PARTY , ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS (“CAPITAL DATA PARTIES”) SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ALLEGED AS BREACH OF CONTRACT, TORT, NEGLIGENCE OR OTHER FORM OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY FOR DAMAGES SHALL NOT EXCEED AN AMOUNT EQUAL TO FEES PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED OR WAS DISCOVERED. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY’S LIABILITY SHALL BE LIMITED FOR (A) A BREACH OF SECTION 7 (CONFIDENTIALITY); (B) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER; (C) AMOUNTS COVERED BY INSURANCE CARRIED PURSUANT TO THIS AGREEMENT; OR (D) A PARTY’S LIABILITY FOR RECKLESS OR WILLFUL MISCONDUCT, FRAUD, MISREPRESENTATION, OR A VIOLATION OF LAW.

6.2 Indemnity.

  1. In addition to the intellectual property indemnity set forth in Section 4.4, Capital Data shall indemnify, defend, and hold harmless Customer, its officers, directors, employees and agents from and against all claims, liabilities, damages, penalties, costs and expenses (including reasonable attorneys’ fees and costs) arising from or in connection with: (i) personal injury, death, or damage to tangible personal property directly caused by the gross  negligence or willful misconduct of Capital Data and (ii) violation of applicable laws and regulations governing Capital Data’s business or the Services.
  2. Customer shall indemnify, defend, and hold harmless Capital Data Parties from and against all claims, liabilities, damages, penalties, costs, and expenses (including reasonable attorneys’ fees and costs) arising from or in connection with Customer’s or any of its employees, agents  or contractors: (i) personal injury, death, or damage to tangible personal property directly caused by the gross  negligence or willful misconduct of Customer and; (ii) violation of applicable laws and regulations governing Customer’s business.

7. CONFIDENTIAL INFORMATION

7.1 Definition. “Confidential Information” means the terms of this Agreement, the Services, any software, and documentation made available by Capital Data, Capital Data’s IP, Customer Data, and any other information furnished by either party pursuant to the Agreement that should reasonably be considered confidential given the circumstances of its disclosure.

7.2 Obligations. Each party agrees that: (a)  Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement for the duration of the Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party’s prior written consent. Notwithstanding the foregoing, either party may disclose Confidential Information to such third party consultants, contractors, vendors or agents assisting in the provision of Services provided that such parties are under an obligation of confidentiality with Capital Data.  Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party’s Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (i) publicly available; (ii) already in the other party’s possession and not subject to a confidentiality obligation; (iii) obtained by the other party from any source without any obligation of confidentiality; (iv) independently developed by the other party without reference to the disclosing party’s Confidential Information as demonstrated by written evidence; (v) a general tool of the trade or background knowledge typically used by a vendor in providing similar Services to others or (vi) required to be disclosed by order of a court or other governmental entity; provided no less than thirty (30) days’ notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.

7.3 Within twenty-four (24) hours of discovery of any unauthorized use, disclosure, access, or modification Customer’s Confidential Information Capital Data shall notify Customer. As soon as possible thereafter, Capital Data shall provide Customer full details of the unauthorized access, disclosure, acquisition, and/or use.  Capital Data will cooperate with Customer in every reasonable way to investigate the incident and will exert best efforts to (a) terminate the unauthorized access, disclosure, acquisition, and/or use and (b) prevent the reoccurrence thereof.  Capital Data shall provide reasonable assistance to Subscriber to regain possession of and terminate any unauthorized access, disclosure, acquisition, and/or use of the materials and information.  Capital Data shall reasonably cooperate with Customer in the conduct of any investigation of or related to said incident.  Capital Data shall discharge all responsibilities set forth in this Section 7.3 at its expense.

7.4 Capital Data shall employ applicable best industry practices and standards and internal security operating protocols (including without limitation, administrative, organizational, physical, and technical security safeguards) to protect Customer’s Data and Confidential Information. Capital Data shall comply, and assist Customer in compliance, with all applicable international, foreign, federal, state, and local laws, statutes, rules, orders, and regulations related to data security or privacy. In the event Customer grants Capital Data online access to designated computer systems of Customer to facilitate Capital Data’s ability to perform its obligations under this Agreement, Capital Data shall comply with Customer’s requirements and procedures for such access and use such access for the sole purpose of and only to the extent necessary for performing its obligations under this Agreement. Capital Data shall promptly notify Customer if it becomes aware of any unauthorized access to Customer’s computer systems or unauthorized use of the information on the systems. If Capital Data terminates any of its employees with access to Customer’s systems, Capital Data will immediately notify Customer. In the event Customer grants Capital Data access to its on-site facilities, Capital Data shall ensure its employees, agents, and representatives following all applicable Customer policies for the applicable site, including security policies and procedures.

7.5 Upon advanced notice, Customer or its third party auditor may annually audit Capital Data’s compliance with the Agreement subject to reasonable security and confidentiality controls.

8. TERM AND TERMINATION

8.1 Term. The initial term of this Agreement shall be as specified on the Statement of Work. After expiration of the initial term, the initial term shall  automatically renew for successive periods equal to the initial term (the initial term and each renewal term, a “Term”) unless either party provides written notice of non-renewal at least thirty (30) days prior to the applicable renewal term.  Upon renewal, the fees and charges for Services shall renew at Capital Data’s then current rates unless otherwise provided in the Statement of Work.

8.2 Termination for Cause.

  1. Capital Data shall have the right, upon notice to Customer, to either terminate this Agreement or the applicable Statement of Work or alternatively suspend the Services if: (i) Customer fails to pay Capital Data any amount due hereunder and such failure to pay is not cured within ten (10) days following Capital Data’s notice to Customer of such breach; (ii) Customer materially breaches any other term or condition of this Agreement, provided such breach is not cured by Customer within thirty (30) days following Capital Data’s notice to Customer of such breach; or (iii) Customer (A) terminates or suspends its business activities, (B) makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (C) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes that is not dismissed within thirty (30) days.  Capital Data reserves the right to immediately suspend Customer’s access to the Services in response to a material breach by Customer that poses imminent harm to Capital Data’s systems or other customers.
  2. Customer will have the right, upon notice to Capital Data, to terminate this Agreement for cause if Capital Data is in material breach of this Agreement and Capital Data fails to remedy such material breach within thirty (30) days of its receipt of such notice.  If Customer terminates pursuant to this Section 8.2, then Customer shall receive a refund of any pre-paid fees for Services not rendered prior to the termination date.

8.3 Termination for Convenience. Either party may terminate a Statement of Work for convenience upon no less than thirty (30) days advance written notice to the other.  In connection with a termination for convenience, Capital Data shall be entitled to full payment for all Services provided through the date of Termination plus any expenses that Customer pre-approved.  Capital Data shall provide Customer with an itemized list and invoice of all such pre-approved costs at least thirty (30) days prior to the termination date.  If Capital Data terminates a Statement of Work pursuant to this Section 8.3, then Customer shall receive a refund of any pre-paid fees for Services not rendered.

8.4 Survival. Any provisions necessary to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of this Agreement.  With limitation, the disclaimers, limitations of liability, confidentiality provisions, intellectual property provisions and indemnity obligations shall survive.

9. GENERAL PROVISIONS

9.1 Independent Contractors. Capital Data and Customer are independent contractors.  Nothing hereunder shall be construed as creating a joint venture, partnership, or other agency relationship.

9.2 Notice. Any notice required or permitted to be delivered pursuant to this Agreement shall be in writing and shall be delivered to the last known primary address of the recipient.  Electronic notice by facsimile or email shall be confirmed by written notice delivered to the recipient’s last known primary address.

9.3 Assignment. Neither party may assign or otherwise transfer this Agreement by operation of law or otherwise without the other party’s prior written consent provided that either party may transfer this Agreement pursuant to a sale of its company or substantially all its assets.

9.4 Force Majeure. Neither party shall have any liability for failure or delay in performing any obligation under this Agreement due to circumstances caused by circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power failures (“Force Majeure Event”).  If a Force Majeure Event occurs, Capital Data shall use its best efforts to resolve such event, including utilizing its disaster recovery and business continuity plan. If a Force Majeure prevents Capital Data from providing Services for more than thirty (30) days, then Customer may terminate this Agreement without any further liability and receive a refund of any pre-paid fees for Services not rendered.

9.5 Enforcement. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement.

9.6 Publicity.  Intentionally Omitted.

9.7 Execution. This Agreement may be executed in counterparts (including by means of telecopied signature pages), all of which shall be considered one and the same agreement.

9.8 Governing Law; Venue. This Agreement will be governed by the laws of the State of Wisconsin, notwithstanding its rules regarding conflicts of law. Exclusive venue for any dispute hereunder shall be in a state or federal court of competent jurisdiction located in Milwaukee County, Wisconsin, and the parties irrevocably submit to the exclusive jurisdiction of such courts and waive all defenses to such jurisdiction including, without limit, defenses of forum nonconvention.  The prevailing party in any dispute shall be entitled to recovery of costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred in enforcing this Agreement with respect to those claims upon which they prevail.

9.9 Non-solicitation. Neither Capital Data nor Customer shall, without the other party’s  prior written consent, for a period of one  year following expiration or termination of the applicable Statement of Work, directly or indirectly, solicit for employment any  employee of the other party with whom it has come in contact in connection with the Services; provided, however, that general advertisements and other similarly broad forms of solicitation will not constitute direct or indirect solicitation hereunder and a party is permitted to solicit for employment any employee that has been terminated or has resigned his or her employment prior to the commencement of employment discussions with the hiring party.

9.10 Insurance. Each party shall, at its sole cost and expense, keep in full force and effect, and provide evidence of:  (i) Commercial General Liability insurance with limits of $2,000,000 per occurrence and in aggregate naming the other party as additional insureds; (ii)  Automobile Liability insurance with limits of $1,000,000; and (iii) Worker’s Compensation, as required by applicable state laws, and Employers’ Liability with limits of $100,000; and (iv)  Professional Liability / Errors and Omissions insurance with limits of $2,000,000 per occurrence and in aggregate.  The foregoing coverage limits may be satisfied through use of umbrella coverage as appropriate.  Customer and its insurers shall waive any and all rights of subrogation against Capital Data.  Failure to request such certificates or to identify any deficiency in the insurance provided shall not be construed as or deemed to be a waiver of a party’s obligation to maintain such insurance.

9.11 Entire Agreement. No purchase order, other ordering document or any hand written or other text which purports to modify or supplement the printed text of this Agreement or any Statement of Work shall add to or vary the terms of this Agreement.  All such proposed variations or additions are objected to and shall have no force or effect.  This Agreement (including the Schedules) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, proposals and agreements, either oral or written, between the parties with respect to said subject matter.   This Agreement or a Statement of Work may only be modified through a written  Amendment or a Change Order executed by authorized representatives of both parties.

9.12 Equipment Agreement. If Customer is purchasing or leasing computer equipment from Capital Data, the terms and conditions of purchase or lease shall be set forth in a separate agreement between Customer and Capital Data.  The terms of this Agreement are separate and independent and shall not apply to the purchase or lease of any such equipment.

In witness whereof, the authorized representatives of the parties have executed this Agreement as of the dates set forth below their signatures.
9.13 Transition Assistance. Capital Data understands and agrees that Customer’s business operations are dependent on the receipt and use of the Services, and that the inability to receive and use the Services could result in irreparable damage to Customer. Therefore, Capital Data agrees that in the event of any termination of this Agreement for any reason, Capital Data shall fully cooperate with Customer in the transition to another licensor of replacement or substitute services and deliverables. In the event the termination results from a breach of this Agreement by Customer, Capital Data shall be paid at the rates set forth in this Agreement, the applicable SOW, or as otherwise mutually agreed to by the parties. Otherwise, such services shall be provided by Capital Data at no additional cost to Customer. Customer may seek specific performance of Capital Data’s obligations under this Section, and Capital Data hereby waives any defense that damages are an adequate remedy. Compliance with this Section by either party shall not constitute a waiver or estoppel with regard to any rights or remedies available to the parties.