This Services Agreement General Terms & Conditions (“Agreement” or, collectively with any Statement of Work, email proposal, or additional contract, the “Contract”) is made by and between the individual or business (“Client”) who is signing this Agreement below, with an address and/or contact information entered/confirmed hereto, and Otter Computer & IT Services, LLC (“Otter”), a Pennsylvania limited liability company with an address of 220 Haverford Avenue, Narberth, PA 19072.

Article 1 – Engagement of Services.  This Agreement shall govern, and set forth the terms and conditions for, all services performed for, and any hardware, software, or other goods sold to, licensed to, or used by the Client, whether those services are performed by Otter before or after the signing of this Agreement (“Service”). Otter may issue Statements of Work (SOW) to Client for any agreed-upon Service, which describes the Service to be performed by Otter and the pricing thereof. If there is no SOW, then the description of the Service to be performed by Otter and pricing thereof may be set forth on Otter’s Proposal, Client Quote, email, or invoices.

Article 2 – Contract Interpretation.  Collectively, this Agreement and any applicable SOW, Proposal, Client Quote (including as authorized by email) and any invoicing are “the Contract” and are to be interpreted for consistency with each other, but to the extent of an irreconcilable conflict, this Agreement shall control.

Article 3 – Work Product/Intellectual Property Rights.  Each party shall own all intellectual property rights in and to any and all materials generated or produced by such party prior to the Client’s first engagement with Otter and/or developed independently of the Contract (“Pre-Existing Materials”).  Client and Otter acknowledge and agree that all software and other materials developed, generated or produced by Otter or its personnel in connection with the performance of the Service hereunder, including but not limited to all Work Product, defined infra, shall be exclusively the property of Otter and shall in no event be considered “work-for-hire”.  The term “Work Product” shall mean: all inventions, ideas, concepts, techniques, know-how, data, methods, designs, models, writings, algorithms, architectures, software, deliverables, utilities, analyses, specifications, reports, research, graphics, logos, all source code, object code, and related technical notes and documentation, all memoranda, records, drawings, manuals, programs, and other documents or materials created or developed by Otter and/or its representatives (including any contributions by the Client) during performance under the Contract and all intellectual property (patents, patent applications, trademarks, copyrights, copyrightable materials, trade secrets and any other similar intellectual property or proprietary rights related to or embodied in the deliverables and all modifications, improvements, and changes thereto and derivatives thereof) therein.  To the extent the Client contributes any information, ideas, or any other works to any Work Product, Client assigns all intellectual property rights to Otter.  Otter is and shall be the sole author of such Work Product and the sole owner of all rights therein.  Client hereby irrevocably assigns, and agrees to cause its employees and/or contractors to assign, to Otter all of their respective rights, titles and interests worldwide in and to any such work, including but not limited to, the right to register the copyrights therein, to modify such Work Product or otherwise make derivative works thereof, to reproduce such Work Product, to re-sell Work Product, to distribute copies or reproductions of such Work Product, to publicly display such Work Product, or in any way use the Work Product, in each case in any form now known or hereafter invented.  Any exceptions for work that should be deemed “work made for hire” and property of the Client shall be noted in a separate written agreement signed by Otter and Client.  Client recognizes that a breach of its obligations with respect to the Work Product will give rise to irreparable injury, inadequately compensable in damages.  Accordingly, Otter may seek and obtain injunctive relief against the breach of the obligations with respect to the Work Product, in addition to any other available remedies pursuant to this Agreement or at law.

Article 4 – Term.  Unless otherwise specified in the applicable SOW, Client may at any time put an end to Otter’s Service by serving it seven (7) days’ written notice of termination. Such cancellation is at the Client’s risk and all fees shall become due and payable immediately for any Service commenced, whether completed or not.  Otter may, at its sole discretion, terminate its Service with three (3) days’ written notice and Client shall be responsible immediately for any and all fees for any Service commenced and actually performed to that date.

Article 5 – Expenses, Charges, and Fees.

5.1 All amounts charged are due and payable within thirty (30) days. Failure to pay within thirty (30) days of the date of invoice shall result in: (a) the removal of all discounts applied and/or promised; and (b) interest shall be charged at the rate of 1.5% per month for each month payment is outstanding. In the event that Otter pursues the Client for collection of amounts past due or any other material breach of this Agreement or SOW (including but not limited to the seeking of a temporary or permanent injunction for breach of the confidentiality, non-solicitation, or intellectual property provisions), Client shall be liable for Otter’s costs and expenses, including, but not limited to, reasonable attorney’s fees, court costs, late fees, and interest.  Such fees shall apply whether or not an action has been instituted.

5.2 In the event that a separate SOW has not been entered into with a billing rate/fee, all Service performed by Otter shall be pursuant to Schedule A attached hereto.  Otter may amend the rates with thirty (30) days’ written or oral notice to the Client.  All hardware, software, or other goods sold, licensed, or used, shall incur an additional charge(s) to Client at reasonable market rates, and may include administrative/stocking fees and shall not be considered included in any SOW.

Article 6 – Liability and Guarantee.

6.1 Assumption of Inherent Risk.  Otter shall make commercially reasonable efforts to ensure the due, timely, and proper performance of the Services.  It is understood by the parties that, particularly in data recovery, certain risks exist beyond the control of Otter and data may be lost or destroyed during the performance of any Services.  Client acknowledges the inherent risks of injury and property damage involved in data storage, data recovery, email hosting, data hosting, and the like, including without limitation, risks due to destruction or damage to the media or data and inability to recover data, or inaccurate or incomplete data recovery, including those that may result from the negligence of Otter, and assumes any and all known risks of injury and property damage that may result. In no event will Otter be liable for loss of data on Client’s media or hardware or Otter’s media or hardware unless due to Otter’s intentional malfeasance or gross negligence in any action or omission.

6.2 Limitation of Liability.  In the event liability is found on the part of Otter regardless of legal theory, pursuant to the Contract or arising from the Service or in connection therewith, Otter’s liability for any damage caused to and proven by the Client (including but not limited to the loss of any data, software, hardware, or intellectual property rights) shall be limited to the lower of the following amounts: (i) six times the total value of the invoices actually paid by the Client for the Services directly linked to the damage caused to the Client, or (ii) six times the then-current monthly fee.  The foregoing limitation of liability reflects deliberate and bargained for allocation of risks.

6.3 Limitation on Categories of Damages.  In no event shall Otter be liable for any incidental, special, punitive, or consequential damages or losses of any kind arising under or in connection with this Agreement, regardless of legal theory, including, but not limited to, any such damages or losses resulting from business interruption or lost profits.

6.4 Exclusion of Liability.  Otter cannot be held liable for any damage caused by or due to the intervention of Client or third parties.  Neither party can be held liable for damage caused directly or indirectly by force majeure.

6.5 Third-Party Claims.  Neither party shall be jointly or severally liable for damages alleged against the other by a third party.  Client is solely responsible for any of its own representations, warranties, and/or covenants made to third parties, including warranties and remedies, regardless of any connection to work performed by Otter.

6.6 Re-performance of Services.  In the event of a breach of any warranty or representation in the Contract, the Client’s sole initial remedy, and Otter’s initial liability, shall be the re-performance of the Services related to the Contract to the reasonable satisfaction of Client at no additional cost.  If Otter is unable to or does not promptly re-perform the Services related to the specific Contract as warranted, Client will not be responsible for payment for any unapproved Services or Deliverables and will return to Otter the delivered products of said non-conforming Services if possible. The remedy set forth in this Section shall be Client’s sole remedy in the event of a breach of such warranty or representation.

6.7 Indemnification.  Client agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless Otter, its officers, directors, employees, attorneys, agents, and subcontractors against any claims by third parties including all damages, liabilities or costs including reasonable attorneys’ fees and defense costs, arising out of or in any way connected with (1) Client’s acts, omissions or breaches of this Agreement or (2) the Services performed hereunder, excepting only those damages, liabilities or costs attributable to the intentional acts of or gross negligence by Otter. 

Article 7 – Governing Law/Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to the principles of conflicts of law thereof.  Any dispute hereunder shall be adjudicated exclusively in the state or federal courts in Pennsylvania in Montgomery County, and each party consents to personal jurisdiction and venue therein.  It is expressly understood that in addition to all rights or remedies available at law, either party shall have the right to seek a preliminary and/or permanent injunction with respect to an alleged breach by the other of Articles 4, 9, and 10.

Article 8 – Representations and Warranties.  The Services are provided to Client on an “as is,” “with all faults” basis.  EXCEPT AS MAY BE (AND ONLY TO THE EXTENT OF) EXPRESSLY STATED IN A SOW WITH RESPECT TO SERVICE LEVEL COMMITMENTS, Otter DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES.  Otter HEREBY EXPRESSLY DISCLAIMS ALL STATUTORY, EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR USE OR PURPOSE, AND ANY WARRANTY EXPRESS OR IMPLIED OF NONINFRINGEMENT.  EXCEPT AS SET FORTH HEREIN, Otter FURTHER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE NATURE AND QUALITY OF ANY OTHER PERFORMANCE BY Otter HEREUNDER.

Article 9 – Noninterference with Business/Non-solicit.  During this Agreement, and for a period of one (1) year immediately following its termination:  (a) Client (and its affiliates, subsidiaries, and entities in which it has a 10% or greater ownership or controlling interest) shall not interfere with the business of Otter by hiring, employing, contracting with, or consulting with – or making an offer to hire, employ, or contract – either directly or indirectly with any of Otter’s current or past employees, independent contractors, or partners; and (b) Client (and its affiliates, subsidiaries, and entities in which it has a 10% or greater ownership or controlling interest) shall not to cause, induce, or otherwise attempt to cause any of Otter’s current employees, independent contractors, or partners to terminate or breach an employment, contractual, or other relationship with Otter.

Article 10 – Confidentiality.

10.1 Confidential Information.  The parties may provide to each other, and parties may otherwise collect, develop, learn or be exposed to, certain of information of the other party in connection with Otter’s performance of the Services including, without limitation, financial and business information, client information, user database, marketing plan, trade secrets, research, know-how, processes, methodology and other technical information, whether tangible or intangible, and including all copies, analyses and derivatives thereof, which information may be identified as confidential or proprietary or should reasonably be understood to be confidential or proprietary in nature (collectively, (“Confidential Information”)).

10.2 Protection of Confidential Information.  The parties may: (i) copy and use Confidential Information only for the purpose of performing the Services hereunder and shall not, without the other party’s prior written consent, disclose such Confidential Information to any person or entity, other than to its employees (and permitted subcontractors) on a need-to-know basis and provided such entities and persons are bound by written agreements that include restrictions applicable to the Confidential Information at least as protective as the terms of this Agreement, (ii) exercise a reasonable level of care to safeguard Confidential Information against improper disclosure or use and take measures that, in the aggregate, are no less protective than those measures it uses to protect the confidentiality of its own comparable confidential or proprietary information, and (iii) take all reasonable steps to advise its employees and sub-contractors of the confidential nature of the Confidential Information and of the prohibitions on copying or revealing such Confidential Information contained herein.  Each party shall be liable for any breach hereof by its employees and subcontractors.

10.3 Exceptions.  The provisions of this Article 10 shall not apply to information that the party can demonstrate is (i) in the public domain other than as a result of a breach of this Agreement by said party, (ii) already rightfully known to said party without restriction, (iii) developed independently by said party not in connection with Services performed for or contemplated by this Agreement and without reference to any Confidential Information, or (iv) received from a third party without similar confidentiality obligations and without breach of this Agreement or a similar agreement.  If the party is required to disclose Confidential Information by law, order regulation of a governmental agency or a court of competent jurisdiction, the party may make such disclosures to the minimum extent necessary to comply with such legal requirement, provided that the party shall use reasonable efforts to notify the other party prior to any such disclosure and to give the other party an opportunity to oppose such disclosure and to seek confidential treatment of such information.

10.4 Limitations of Liability.  The limitations of liability listed in Articles 6.2 and 6.3 shall not apply to a breach of this Article 10.

10.5 Injunctive Relive.  Receiving Party recognizes that breach of its obligations with respect to Confidential Information will give rise to irreparable injury, inadequately compensable in damages, and that, accordingly, Disclosing Party may seek and obtain injunctive relief against the breach of the obligations with respect to Confidential Information, in addition to any other available legal remedies.

Article 11 – Survival.  The rights and obligations in Articles 3 (Work Product/Intellectual Property), 6 (Liability and Guarantee), 9 (Non-interference with Business), and 10 (Confidentiality) shall survive any termination (with or without cause) or expiration of this Agreement or any SOW.

Article 12 – Miscellaneous.

12,1 Waiver.  No consent or waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such consent or waiver is sought to be enforced.  No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.

12.2 Severability.  If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.

12.3 Notice.  All notices and legal service of any documents shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by call back, reply, or read-receipt.  All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party.

12.4 Amendment.  No amendment to or modification of this Agreement shall be valid unless in writing and signed by an authorized representative of each party.

12.5 Entire Agreement.  The Contract constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications, representations, and understandings, whether oral or written.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.  Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.

12.6 Legal Counsel; Mutual Drafting.  Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice.  Each party has cooperated in the drafting, negotiation and preparation of this Agreement and any SOW.  In any construction or interpretation to be made of this Agreement, the same shall not be construed against either party on the basis of that party being the drafter of such language.  Each party agrees and acknowledges that it has read and understands this Agreement and its obligations thereunder, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into this Agreement and has had ample opportunity to do so.

† Onsite work incurs a minimum 1 hour charge, and is rounded up to the nearest 30-minute increment.

1 All hardware, software, or other goods sold, licensed, or used, may incur an additional charge(s) to Client at reasonable market rates, and may include administrative/stocking fees.

2 All rates above shall be charged at two times the listed rates for time incurred after normal business hours, on weekends, or on holidays.