These ARGenius Terms and Conditions of Services (“ARGenius Terms”) apply to the organization (“Client” or “you” or “your”) purchasing professional services from Association Resource Group, Inc. (“ARG” or “us” or “we”). Except as otherwise expressly set forth herein, the professional services provided by ARG are set forth in the underlying Service Order document (“Order”) signed by Client. These ARGenius Terms are incorporated in and made a part of all Orders. Each of Client and ARG may be referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Order.
ARGenius Terms & Conditions
1. SCOPE; SERVICES
- Scope. These ARGenius Terms govern all services that ARG performs for, as well as any services, licenses or products that we sell or re-sell, to Client under the Agreement (collectively, the “ARGenius Services” or “Services”).
- Services Quotes. The Services to be provided will be set forth in the Order and may be further defined in a quote, proposal, or statement of work (collectively, a “SOW”), or they may be defined by the actual Services provided to Client and our invoicing of same. If no written SOW exists, then in these ARGenius Terms “SOW” shall include the actual Services provided to Client and for which Client are, or for which Client have been, invoiced by ARG. By accepting the Order, Client agrees to the terms of the Agreement.
- Outside of Scope. Any Services not expressly described in the Order are deemed out of scope and subject to a separate scoping exercise and mutually agreed to SOW between the Parties, including additional charges as set forth therein. We may update these ARGenius Terms from time to time, which will be identified by the last updated date, and may be reviewed at https://www.myarg.com/argenius-terms-conditions
2. TERM; TERMINATION
- Term/Automatic Renewal. The initial term of the Agreement is specified on the Order (“Initial Term”). This Agreement begins on the Effective Date of the Order and continues for the term indicated on the Order or until terminated as described in this Agreement. Unless Customer provides 30 days advance notice prior to the expiration of the Initial Term, upon expiration of the Initial Term, the Agreement renews for an additional one-year terms on each renewal anniversary (each a “Renewal Term” and with the Initial Term, the “Term”.) Each separate SOW will have its own Term and will be terminated only as provided herein, unless otherwise expressly stated in the applicable SOW. The termination of one SOW shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Order or SOW between the Parties.
- Termination Without Cause. Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no Party will terminate this Agreement without cause if, on the date of termination, a SOW or Order is in progress. In addition, no Party will terminate a SOW without cause prior to the SOW’s natural expiration date, it being understood that if no written SOW exists, then the Services must be terminated with no less than 30 day’s written notice. Notwithstanding the foregoing, if ARG decides to cease providing a Service to all of its customers generally, then ARG may terminate an applicable SOW without cause by providing no less than sixty (60) days prior written notice to Client. If Client terminates an Order or SOW without cause and without ARG’s consent, then Client will be responsible for paying the termination fee described in the “Termination for Cause” section below.
- Termination For Cause. In the event that one Party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. The foregoing cure period may be extended by ARG in its sole discretion if the default is not capable of being cured within twenty (20) days. If ARG terminates this Agreement or any SOW For Cause, or if Client terminates any Order or SOW without cause prior to such Order or SOW’s applicable expiration date, then ARG shall be entitled to receive, and Client hereby agrees to pay to ARG, all amounts that would have been paid to ARG had this Agreement or SOW (as applicable) remained in effect. If Client terminates this Agreement or a SOW For Cause, then Client will be responsible for paying only for those Services that were properly delivered and accepted by Client up to the effective date of termination.
3. FEES; PAYMENT
- Fees. The fees for Services will be set forth in the applicable Order or SOW (the “Fees”). Unless otherwise expressly stated in the Order, all Fees during the Term are non-refundable, non-cancellable and due upon the Effective Date of the relevant Order. Client agrees to pay the Fees, costs, and expenses described in the Order and each SOW (including termination fees set forth above). Client is responsible for sales tax and any other taxes or governmental fees associated with the Services. If Client qualifies for a tax exemption, it must provide us with a valid certificate of exemption or other appropriate proof of exemption. Client is also responsible for all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes).
- Schedule. Fees are due and payable annually in advance of the provision of the Services, unless otherwise stated in the Order or a SOW.
- Nonpayment. Fees that remain unpaid for more than thirty (30) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 3% per month or the maximum allowable rate of interest permitted by applicable law. ARG reserves the right, but not the obligation, to suspend part or all of the Services without prior notice to Client in the event that any portion of undisputed Fees are not timely received by us, and monthly or recurring charges shall continue to accrue during any period of suspension. Notice of disputes related to Fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on which Client pays an invoice, whichever is later; otherwise, Client waives the right to dispute the invoiced Fees thereafter. A re-engagement fee may be charged to Client if ARG suspends the Services due to your nonpayment.
4. CLIENT MATERIALS/OBLIGATIONS
- In order to perform the Services, ARG requires access to certain Client owned information, such as invoices, contracts, site contacts, service provider letters of authorization, etc. (“Client Materials”). Client retains ownership of the Client Materials and grants ARG a limited license to access, use and modify the Client Materials as reasonably necessary to enable ARG to provide the Services. Client represents and warrants that it has all rights and consents necessary to provide the foregoing Client Materials to ARG. ARG’s obligation to provide the Services shall be contingent upon Client timely provision of the Client Materials to us and Client providing reasonable access to Client facilities. In no event will ARG be liable for any error in the Client Materials regarding service contract end dates and Client remains solely liable for any underlying provider services that automatically renew or remain in service due to a conflict between Client’s expected expiration or termination date and the underlying provider’s assertions of different dates.
- Client grants to ARG the right to monitor, diagnose, manipulate, communicate with, and retrieve information from the Client’s network environment as necessary to enable us to provide the Services. It is your responsibility to secure, at Client’s sole cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for ARG to provide Services, if applicable, at Client designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by Client at all times. ARG shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any Personnel, or that would require extraordinary or non-industry standard efforts to achieve.
- General Assumptions. ARG’s obligation to perform the Services is contingent upon the fulfillment of certain obligations and assumptions as follows:
a. Prior to commencement of the Services, Client will designate a person known as the Customer Program Manager who will have the authority to act on behalf of Client in all matters regarding the Services. This single point of contact will be responsible for facilitating all communications between Client and us and for cooperating as to issue resolution, activity scheduling, and information collection and dissemination;
b. Client will ensure that ARG has access to the account(s) associated with the relevant Services;
c. Client has properly evaluated and confirmed all contract expiration or termination dates;
d. If onsite work is required and agreed upon in the Order, Client will provide us with a work area for Personnel while on site;
e. Unless otherwise described, Services are performed during our normal business hours (Monday through Friday, 8:00 am to 5:00 pm Eastern United States time, excluding holidays). To the extent that Client require Services to be provided outside of normal business hours, if acceptable to us in our reasonable discretion, we may issue a change to the Order, which may include an increase to the applicable Fees (change orders and approval of additional Fees may be established by e-mail correspondence between ARG and Client);
f. The Fees are independent of any travel or other expenses incurred by us in relation to onsite work and related charges, which shall be separately invoiced by us, as applicable.
5. ARG SERVICES AND OBLIGATIONS
6. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY
- Third Party Products Procured Through ARG. All services, hardware, software, peripherals, subscriptions or accessories procured by ARG (“Third Party Products”) are nonrefundable once the applicable order is placed by ARG on Client’s behalf. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. All Third Party Products are provided “as is” and without any warranty whatsoever as between ARG and Client (including but not limited to implied warranties). It will remain Client’s sole responsibility to confirm and calendar all contract start and expiration or termination dates for Third Party Products and ARG will use commercially reasonable efforts to provide accurate information to Client regarding same.
- Liability Limitations. This paragraph limits the liabilities arising under this Agreement or any SOW and is a bargained-for and material part of this Agreement. Client acknowledges and agrees that ARG would not enter into any Order or SOW or this Agreement unless ARG could rely on the limitations described in this paragraph. In no event shall either Party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits, early termination fees and auto-renew obligations incurred by Client (except for Fees due and owing to ARG), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any Order or SOW, or the Services, or for network security breach or any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a Party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing Party (as described below) shall not be limited by the foregoing limitation. Except for Client Fees payment obligations and indemnification obligations described in this Agreement, a responsible Party’s (“Responsible Party’s”) aggregate liability to the other Party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or regular or gross negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the lesser of (i) the amount of Fees paid by Client (excluding hard costs for licenses, hardware, etc.) to ARG for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued, or (ii) one hundred thousand dollars ($100,000.00). The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
7. INDEMNIFICATION
- Each Party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other Party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.
8. CONFIDENTIALITY
- Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided to us by Client, including but not limited to Client’s customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of ARG, (ii) was developed independently by us, or (iii) is or was lawfully and independently provided to us prior to disclosure by Client, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
- Use. We will keep your Confidential Information confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by Client in writing, or (ii) as needed to fulfill our obligations under this Agreement.
- Due Care. We will exercise the same degree of care with respect to the Confidential Information we receive from Client as we normally take to safeguard and preserve our own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
- Compelled Disclosure. If we are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, we will immediately notify Client in writing of such requirement so that Client may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section. We will use its best efforts, at your expense, to obtain or assist Client in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, we may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that we have been advised, by written opinion from our counsel, that we are legally compelled to disclose.
- Business Associate. If we enter into a business associate agreement (“BAA”) with Client for the protection of personal health information, then the terms of the BAA will be read in conjunction with the terms of the confidentiality provisions of this Agreement. The terms that protect confidentiality most stringently shall govern, and conflicting privacy- or confidentiality-related terms shall be governed by the BAA.
9. MISCELLANEOUS
- Compliance. Unless otherwise expressly stated in the Order or SOW, the Services are not intended, and will not be used, to bring Client into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Client’s business or operations. Depending on the Services provided, the Services may aid Client’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.
- Disclosure. Client warrants and represents that it knows of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. Client agrees to promptly notify us if Client becomes subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.
- Security. Client understands and agrees that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are purposely or intentionally downloaded or installed into the your network. We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a SOW, the recovery of Impacted Data is not included in the scope of a SOW. Client is strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents.
- Non-Solicitation. Each Party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of the other Party’s employees with whom the Restricted Party worked as a result of this Agreement, to discontinue or reduce the scope of their business relationship with the other Party, or recruit, solicit or otherwise influence any employee or contractor of the other Party to discontinue his/her employment or agency relationship with the other Party. In the event of a violation of the terms of the restrictive covenants in this section, the Parties acknowledge and agree that the damages to the other Party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other Party as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee’s first year of base salary with the defaulting Party (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a Party’s employees by a Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected Party shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
- Non-Circumvention. During the term of this Agreement, Client agrees not to offer, pursue, or engage in any transaction with any contractor designated by ARG to provide Services to Client where your efforts are intended to, or may, circumvent or encourage the circumvention of the Services in whole or in part.
- Assignment. Neither this Agreement nor any SOW may be assigned or transferred by a Party without the prior written consent of the other Party. This Agreement will be binding upon and inure to the benefit of the Parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, ARG may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder.
- Amendment. Unless otherwise expressly permitted under this Agreement, no amendment or modification of this Agreement or any Order or SOW will be valid or binding upon the Parties unless such amendment or modification is originated in writing by ARG, specifically refers to this Agreement or the SOW being amended, and is accepted in writing (email or electronic signature is acceptable) by Client.
- Time Limitations. The Parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
- Severability. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
- Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by Client unless such terms or conditions are incorporated into a duly executed SOW, or unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
- No Waiver. The failure of either Party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
- Merger. This Agreement, together with any and all Orders and SOWs, sets forth the entire understanding of the Parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that Client have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement or statement of intention has been made by either Party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements if they are not explicitly set forth in this Agreement or any Quote or SOW. Any document that is not expressly and specifically incorporated into this Agreement or SOW will act only to provide illustrations or descriptions of Services to be provided and will not modify this Agreement or provide binding contractual language between the Parties. The foregoing sentence shall not apply to any business associate agreement required under HIPAA, which the Parties may (if required) enter into after the Effective Date of this Agreement.
- Force Majeure. Neither Party will be liable to the other Party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such Party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other Party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages (including but not limited to ISP-related outages), delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
- Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
- Insurance. ARG and Client will each maintain, at each Party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability. We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other Party.
- Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of Virginia. Client hereby irrevocably consents to the exclusive jurisdiction and venue of Fairfax County, Virginia, for any and all claims and causes of action arising from or related to this Agreement.
- No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
- Notices; Writing Requirement. Where notice is required to be provided to a Party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from Client to ARG regarding (a) any alleged breach of this Agreement by ARG, or (b) any request for indemnification, must be delivered to ARG either by U.S. mail or fax, unless such requirement is expressly and specifically waived by ARG. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.
- Independent Contractor. ARG is an independent contractor, and is not your employer, employee, partner, or affiliate.
- Subcontractors. Generally, we do not utilize subcontractors to perform onsite Services; however, should we elect to subcontract a portion of those Services, we will guarantee the work as if we performed the subcontracted work ourselves.
- Data Access/Storage. Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. Client agrees to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.
- Counterparts. The parties intend to sign, accept and/or deliver any Order, this Agreement, SOW or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each Party may sign, accept, and/or deliver any Order, this Agreement, any SOW or any amendment electronically (e.g., by emailed acceptance, digital signature, and/or electronic reproduction.
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