Master Services Agreement

Effective 1/15/2025. This Master Services Agreement supersedes and replaces all prior versions.

This Master Services Agreement (this “Agreement”) is between Divergys, LLC with offices 316 E Main St., Suite 1, Humble, Texas 77338 (“us”, “our”, “we” or “Divergys”), and you, our valued client (“you”, “your” or “Client”).

1. SCOPE OF SERVICES; SOW.

This Agreement governs all of the products sold (or re-sold) and services that we perform for you (collectively, the “Services”). The Services will be described in one or more statements of work that we provide to you (each, a “SOW”), and once you and we mutually agree to a SOW (either by signing it or by electronic acceptance), the SOW will become a part of, and governed under, the terms of this Agreement. If there is a material difference between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability or termination of this Agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement. Divergys’ engagement with you is limited to those products and services expressly listed in a SOW. No other products or services will be provided to you unless the parties expressly agree in an executed writing.

2. GENERAL REQUIREMENTS.

System Configuration. For the purposes of this Agreement, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored or operated by Divergys pursuant to this Agreement. Our fees are based upon the configuration of your System as of the effective date of the applicable SOW. If the System configuration changes for any reason, then we may adjust the scope of services and/or the fees charged to you under the applicable SOW to accommodate those changes.
Requirements. At all times, all software on the System must be genuine and licensed, and you agree to provide us with proof of such licensing upon our request. If we require you to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), you agree to do so as an ongoing requirement of Divergys providing its Services to you.
Maintenance; Updates. If patches and other software-related maintenance updates (“Updates”) are to be provided by Divergys under a SOW, Divergys will install the Updates only if Divergys has determined, in its reasonable discretion, that the Updates will be compatible with the particular configuration of the System and materially beneficial to the features or functionality of the applicable software or hardware. Divergys will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
Third Party Support. If, in Divergys’s discretion, a hardware or software issue requires vendor or OEM support, Divergys may contact the vendor or OEM (as applicable) on your behalf and pass through to you, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $500, Divergys will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require otherwise. You agree that Divergys may pass through any increases in fees or costs incurred from such Third Party Support.
Your Insurance. You are required to purchase and maintain, at your sole cost, in force during the Term of this Agreement (and applicable SOW) and for no less than two (2) years thereafter the following insurance coverages:
- Comprehensive General Liability. Not less than $2,000,000 combined single limit for property damage and bodily injury per loss, including Contractual, Broad Form Property Damage, Personal Injury, and Products and Completed Operations coverage.
- Cyber Liability Insurance. Providing both third party and first party per occurrence coverage in the following areas: (a) Network and Information Security coverage in an amount not less than $2,000,000; and (b) Technology Errors and Omissions coverage in an amount not less than $2,000,000.
- Workers’ Compensation and Employers’ Liability. Statutory limits (workers’ compensation) and not less than $1,000,000 per claim (employers’ liability). This policy will include a waiver of subrogation in favor of Divergys.
- Any other insurance types and amounts reasonably required in connection with this Agreement or any SOW.
Divergys must be listed as an additional insured on any policy acquired and maintained by you under this Agreement. As of the Effective Date and, thereafter, upon Divergys’s request, you agree to provide certificate or certificates of insurance (and/or proof of payment of any applicable premiums or other amounts due under the insurance policy) evidencing that the above-noted insurance requirements have been satisfied and specifying that Divergys will receive thirty (30) days advance notice by certified mail of any cancellation, modification or reduction in coverage. You will obtain the insurance coverage set forth herein from an insurance carrier with a minimum A.M. Best’s rating of A-.
Advice; Instructions. From time to time, we may provide you with specific advice and directions related to our provision of the Services or the maintenance or administration of the System. (For illustrative purposes, such advice or directions may include installing cooling mechanisms or environmental controls in a server room, increasing the System’s server or hard drive capacity, replacing obsolete equipment, increasing CPU power, etc.). You agree to promptly follow and implement any directions we provide to you related to the Services which, depending on the situation, may require you to make additional purchases or investments in the System or the environment in which the System is maintained, at your sole cost. Divergys will not be responsible for any System downtime caused by your failure to promptly follow Divergys’s advice or directions. If your failure to follow or implement Divergys’s advice renders part or all of the Services economically or technically unreasonable in Divergys’s discretion, then Divergys may terminate the applicable SOW for cause by providing notice of termination to you. Any services required to correct or remediate issues caused by your failure to follow Divergys’s advice or directions, as well as any services required to bring the System up to the Minimum Requirements, will be billed to you at Divergys’s then-current hourly rates.
Prioritization. Unless otherwise stated in a SOW, all Services will be performed on a schedule, and in a prioritized manner, as determined by Divergys.
Authorized Contact(s). You understand and agree that Divergys will be entitled to rely on any directions or consent provided by your personnel or representatives who are authorized in a SOW to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable SOW, then your Authorized Contact will be the person(s) (i) who signed this Agreement, and/or (ii) who signed the applicable SOW. If you desire to change your Authorized Contact(s), please notify Divergys of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.

3. FEES; PAYMENT.

You agree to pay the fees described in each SOW. If the SOW does not include a fee schedule, then you agree to pay Divergys on an hourly basis pursuant to Divergys’s standard hourly rate schedule, which will be provided to you prior to the commencement of Services. If you are a qualified tax exempt entity, it is your responsibility to provide us with a current certificate (or other proof) of exemption. You are also responsible for all applicable Taxes, shipping, and insurance costs. Taxes means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes, which are imposed or assessed based on the delivery of products and Services as set forth herein.

Schedule. Unless otherwise stated in a SOW, all undisputed fees will be due and payable in advance of the calendar month in which the Services are to be provided to you. If applicable, payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided. If applicable, payments made by credit card will be charged to your designated credit card on the first business day of the month in which the Services are to be provided. For prepaid fees or fees paid pursuant to a service plan, payment must be made in advance of work performed, unless other arrangements are expressly stated in the SOW.
Nonpayment. Fees that remain unpaid for more than fifteen (15) 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 1.5% per month or the maximum allowable rate of interest permitted by applicable law. Divergys reserves the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely received by Divergys. 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 you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. A re-connect fee may be charged to you if Divergys suspends the Services due to your nonpayment. Time is of the essence in the performance of all payment obligations by you.
We require automatic payment for all Recurring, Monthly fees via ACH or credit card. If you authorize payment by credit card and ACH, then the ACH payment method will be attempted first. If that attempt fails for any reason, then we will process payment using your designated credit card. We reserve the right to use third party payment processing entities to process such payments.
- ACH. When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account for any Recurring, Monthly fees due under your executed SOWs. This authorization will continue until otherwise terminated in writing by you. We will apply a $20.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.
- Credit Card. When enrolled in a credit card payment processing method, you authorize us to charge your credit card, as designated by you in our payment portal, for any Recurring, Monthly fees payments due under your executed SOWs. For each credit card transaction, we reserve the right to add a convenience fee (which as of the Effective Date is three percent (3%) to the applicable invoice which will not exceed the actual costs we incur to accept your credit card.

4. ACCESS.

You hereby grant to Divergys the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System for the purpose of enabling Divergys to provide the Services. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permissions necessary for Divergys to provide Services to the System and, if applicable, at your designated premises. Proper and safe environmental conditions must be provided and assured by you at all times. Divergys 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.

5. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY.

Hardware / Software Purchased Through Divergys. Unless otherwise stated in a SOW, all hardware, software, peripherals or accessories purchased through Divergys (“Third Party Products”) are nonrefundable once the applicable purchase order is placed in Divergys’s queue for delivery. 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 you, 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. Unless otherwise expressly stated in a SOW, all Third Party Products are provided “as is” and without any warranty whatsoever as between Divergys and you (including but not limited to implied warranties).
Warranty Application. Notwithstanding any provision to the contrary in this Agreement, any warranty provided by Divergys shall be deemed null and void if the applicable hardware or product is (i) altered, modified or repaired by persons other than Divergys, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Divergys; (ii) misused, abused, or not operated in accordance with the specifications of Divergys or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than Divergys or persons approved or designated by Divergys.
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. Divergys would not provide Services or enter into a SOW if you did not agree to the limitations herein. In no event shall either party be liable for any indirect, special, exemplary, consequential or punitive damages, or for lost revenue, loss of profits (except for fees due and owing to Divergys), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for 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. Except for your payment obligations and your 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 negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the lesser of (i) amount of fees paid by you to Divergys 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; and (ii) the applicable maximum limits of our insurance covering the cause of action. The foregoing limitation shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. 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.
Liability Waiver for Administrative Access. Divergys stresses that you should significantly limit authorizing and providing administrative/root access to your System, perhaps limiting to only Divergys. Allowing non-Divergys administrative access could result in substantial issues on your System. You hereby agree to indemnify and hold Divergys harmless from and against any damages to your System or claims resulting from you directing Divergys to provide administrative access to your System to non-Divergys personnel when such damages and/or claims arise from or are related to occurring due to such administrative access granted and traced to such access to your System. Such liability waiver shall not be enforced against you if Divergys provided such access at its sole direction.
Liability Waiver for Obsolete Equipment. Obsolete Equipment can cause security and other vulnerabilities in your System, and/or result in failure of your System. If Obsolete Equipment remains operating in your System, you hereby agree to indemnify and hold Divergys harmless from and against any damages to your System, and claims (and understand Divergys shall not be responsible for fixing) relating to any issues arising from the failure or inoperability of such Obsolete Equipment. Furthermore, Divergys encourages you to confirm that such use of Obsolete Equipment does not constitute an exclusion from coverage under your insurance policies. Obsolete Equipment shall mean equipment, device, hardware, or software that is outdated, obsolete, incompatible with industry-standards, and/or no longer supported by the original manufacturer.

6. INDEMNIFICATION.

You agree to indemnify, defend and hold Divergys 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, your breach of this Agreement, or which relate to any act or omission undertaken or caused by you. The foregoing indemnification obligation includes Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services. Divergys 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. No claim for which indemnity is sought by Divergys will be settled without Divergys’s prior written consent, which shall not be unreasonably delayed or withheld.

7. TERM; TERMINATION.

This Agreement will begin as of the latest date of the signatures of the parties below, and will continue until terminated as described in this Section. Each SOW will have its own term, and will be terminated only as provided herein, unless otherwise expressly stated in the applicable SOW. A SOW may contain provisions auto renewing certain Services. The termination of one SOW shall not, by itself, cause the termination of (or otherwise impact) the status or progress of any other SOW between the parties.

Termination Without Cause. Unless otherwise agreed by the parties in an executed writing, no party will terminate a SOW without cause prior to the SOW’s natural expiration date. Notwithstanding the foregoing, if Divergys decides to cease providing an applicable service to all of its clients generally, then Divergys may terminate an applicable SOW without cause by providing no less than ninety (90) days prior written notice to you. If you terminate a SOW without cause and without Divergys’s consent, then you will be responsible for paying the early termination fee described in each applicable SOW. If no early termination fee is listed, then prior to the effective date of termination of each SOW without cause, Divergys shall be entitled to receive, and you hereby agree to pay Divergys an amount equal to (i) all expenses incurred by Divergys in its preparation and provision of the Services to you, e.g., licensing fees incurred by Divergys, non-mitigatable hard costs, etc. (“Hard Costs”), as well as (ii) fifty percent (50%) of all fees that would have been paid to Divergys had the term not been terminated prematurely. Upon early termination, no pro rata portion of any annual fee (including but not limited to any per seat license fee charged by a Third Party) you paid will be reimbursed by Divergys. The Term of this Agreement shall not be terminated until all SOWs are terminated. If no SOW is in effect, then either party may terminate this Agreement without cause by providing the other party with five (5) days prior written notice.
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 thirty (30) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If Divergys terminates this Agreement or any SOW For Cause, then Divergys shall be entitled to receive, and you hereby agree to pay to Divergys, (i) all expenses incurred by Divergys in its preparation and provision of the Services to you, e.g., licensing fees incurred by Divergys, non-mitigatable hard costs, etc. (“Hard Costs”), as well as (ii) fifty percent (50%) of all fees that would have been paid to Divergys had the term not been terminated prematurely For Cause. If Client terminates 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.
Client Activity As A Basis For Termination. In the event that (i) any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the System or any part of the System to malfunction or requires remediation by Divergys on three (3) occasions or more (“System Malfunction”), and you fail to remedy, repair or replace the System Malfunction as directed by Divergys (or you fail to cease the activity causing the System Malfunction, as applicable), or (ii) you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then Divergys will have the right, upon ten (10) days prior written notice to you, to terminate this Agreement or the applicable SOW For Cause or, at Divergys’s discretion and if applicable, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.
Consent. You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time.
Equipment / Software Removal. Upon termination of this Agreement or applicable SOW for any reason, you will provide Divergys with access, during normal business hours, to your premises or any other locations at which Divergys-owned equipment or software (collectively, “Divergys Equipment”) is located to enable Divergys to remove all Divergys Equipment from the premises. Furthermore, in the event our Services required the installation of software agents on your System, you agree not to remove, disable, circumvent, or otherwise disrupt any such software agents unless and until Divergys expressly directs you to do so. If you fail or refuse to grant Divergys access as described herein, or if any of the Divergys Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Divergys-supplied software is missing, Divergys will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
Transition; Deletion of Data. In the event that you request Divergys’s assistance to transition away from Divergys’s services, Divergys will provide such assistance if (i) all fees due and owing to Divergys are paid to Divergys in full prior to Divergys providing its assistance to you, and (ii) you agree to pay Divergys its then-current hourly rate for such assistance, with up-front amounts to be paid to Divergys as may be required by Divergys. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly stated in a SOW, or required by law, Divergys will have no obligation to store or maintain any Client data in Divergys’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. Divergys will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Divergys’s deletion of your data beyond the time frames described in this Section 7(f).

8. RESPONSE; REPORTING

Response.Divergys warrants and represents that Divergys will provide the Services, and respond to any notification received by Divergys of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in an applicable SOW (“Response Time”), except for (i) those periods of time covered under the Onboarding Exception (defined below), or (ii) periods of delay caused by Client-Side Downtime (defined below), Vendor-Side Downtime (defined below) or (iii) periods in which Divergys is required to suspend the Services to protect the security or integrity of your System or Divergys’s equipment or network, or (iv) delays caused by a force majeure event.
1. Scheduled Downtime.For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by Divergys but which will not occur between the hours of 8 AM and 5:00 PM CST (or CDT, as applicable), Monday through Friday without your authorization or unless exigent circumstances exist, during which time Divergys will perform scheduled maintenance or adjustments to its network. Divergys will use its best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
2. Client-Side Downtime. Divergys will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions (“Client-Side Downtime”).
3. Vendor-Side Downtime. Divergys will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third party service providers, third party licensors, or “upstream” service or product vendors.
4. Remedies; Limitations. Except for the Onboarding Exception, if Divergys fails to meet its service level commitment in a given calendar month and if, under such circumstances, Divergys’s failure is not due to your activities, omissions, or inactivity, then upon receiving your written request for credit, Divergys will issue you a pro-rated credit in an amount equal to the period of time of the outage and/or service failure. All requests for credit must be made by you no later than thirty (30) days after you either (i) report the outage or service failure to Divergys, or (ii) if applicable, receive a monthly report showing the outage and/or failure. The remedies contained in this paragraph are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to you for Divergys’s failure to meet any service level commitment during the term of this Agreement.
Onboarding Exception. You acknowledge and agree that for the first sixty (60) days following the commencement date of a SOW, the Response Time commitments described in this Agreement will not apply to Divergys, it being understood that there may be unanticipated downtime or delays due to Divergys’s initial startup activities with you (the “Onboarding Exception”).

9. CONFIDENTIALITY

Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided to Divergys by you, including but not limited to your client data,
client 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 Divergys, (ii) was developed independently by Divergys, or (iii) is or was lawfully and independently provided to Divergys prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
Use. Divergys 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 you in writing, or (ii) as needed to fulfill Divergys’s obligations under this Agreement. If Divergys is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then Divergys will ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 9.
Due Care. Divergys will exercise the same degree of care with respect to the Confidential Information it receives from you as Divergys normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
Compelled Disclosure. If Divergys is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Divergys will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive Divergys’s compliance with the provisions of this Section 9. Divergys will use its best efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Divergys may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Divergys has been advised by written opinion of counsel reasonably acceptable to Divergys that it is legally compelled to disclose.
Publicity. Divergys may publicly identify you as a customer of Divergys.

10. ADDITIONAL TERMS; THIRD PARTY SERVICES.

EULAs. Portions of the Services may require you to accept the terms of one or more third party end user license agreements (“EULAs”). EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree to be bound by the terms of such EULAs, and will look only to the applicable third party provider for the enforcement of the terms of such EULAs. If, while providing the Services, Divergys is required to comply with a third-party EULA and the third party EULA is modified or amended, Divergys reserves the right to modify or amend any applicable SOW with you to ensure Divergys’s continued compliance with the terms of the third party EULA. If Divergys provision of Services contained in an SOW require the acceptance of a EULA, you hereby authorize Divergys to accept the applicable EULA on your behalf.
Third Party Services. Portions of the Services may be acquired from, or rely upon the services of, third party manufacturers or providers (known in industry was upstream providers), such as data hosting services, domain registration services, malware detection, remediation services, firewall and/or endpoint security-related services, and data backup/recovery services (“Third Party Service”). Not all Third Party Services may be expressly identified as such in a SOW, and at all times Divergys reserves the right to utilize the services of any third party provider that Divergys deems most appropriate for your System and System Configuration, or change third party providers in its sole discretion as long as the change does not materially diminish the Services to be provided to you under a SOW. Divergys will not be responsible, and will be held harmless by you, for the omission, defect, and/or failure of any third-party provider or manufacturer to provide Third Party Services to Divergys or to you.
Data Loss. Under no circumstances will Divergys be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) Divergys’s failure to backup or secure data from portions of the System that were not expressly designated in the applicable SOW as requiring backup or recovery services. Unless expressly stated in a SOW, Divergys does not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.
BYOD. You hereby represent and warrant that Divergys is authorized to provide the Services to all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that (i) are connected to the System, and (ii) have been designated by you to receive the Services, regardless of whether such device(s) are owned, leased or otherwise controlled by you. Unless otherwise stated in a SOW, devices will not receive or benefit from the Services while the devices are detached from or unconnected to the System.

11. OWNERSHIP

Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party.

12. MEDIATION; ARBITRATION.

Mediation. If any dispute, difference, or disagreement shall arise upon or in respect of the Agreement (and/or SOW), and the meaning and construction hereof, every such dispute, difference, and disagreement shall first be resolved through the good faith negotiations of the parties for at least thirty (30) days. If those negotiations are unsuccessful, the parties agree to mediation before a single mediator (with suitable experience in the information technology industry) agreed upon by the Parties, the cost of which mediation shall be borne equally by the Parties.
Arbitration. In the event a dispute is not successfully resolved through mediation, the dispute shall be resolved by arbitration in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (except as modified herein) including the Optional Expedited Arbitration Procedures and Optional Appeal Procedure, in effect at the time the request for arbitration is made (the "Rules"). In the event of any inconsistency between the Rules and the procedures set forth below, the procedures set forth below will control. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of the Agreement is void or voidable. The arbitration shall be heard by a single arbitrator, to be selected by the parties and having at least ten (10) years experience in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within thirty (30) days after a demand for arbitration is filed, JAMS shall select the arbitrator. The arbitration shall take place in Harris County, Texas. The arbitrator shall determine the scope of discovery in the matter, however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs. Such judgment upon the award rendered by the arbitrator(s) shall be entered in any court having jurisdiction thereof. For that purpose, the Parties hereto consent to the exclusive jurisdiction and venue of an appropriate court located in Houston, Harris County, Texas.
Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of Texas.

13. MISCELLANEOUS

Disclosure. You warrant and represent that you know 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. Similarly, you represent that your business is not subject to the provisions of the Federal Acquisition Regulation (FAR), or any similar regulatory acquisition process or procedure. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law (such as HIPAA), then you agree to identify to us any data or information subject to protection under that law prior to providing such information to us or, as applicable, prior to giving us access to such information.
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, Divergys may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of Divergys, or any other transaction in which ownership of more than fifty percent (50%) of Divergys’s voting securities are transferred; provided, however, that such assignee expressly assumes Divergys’s obligations hereunder.
Amendment. No amendment or modification of this Agreement or any SOW will be valid or binding upon the parties unless such amendment or modification is originated in writing by Divergys, specifically refers to this Agreement, and is accepted in an executed writing by one of your Authorized Contacts and countersigned by Divergys.
Time Limitations. The parties mutually agree that any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within ninety (90) days 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. Divergys will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into a duly executed SOW.
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 SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. 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 act to modify this Agreement or provide binding contractual language between the parties. Divergys will not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
Force Majeure. Divergys will not be liable to you for delays or failures to perform Divergys’s obligations under this Agreement or any SOW because of circumstances beyond Divergys’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by you, 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, 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.
Non-Solicitation. You acknowledge and agree that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Divergys’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Divergys, or recruit, solicit or otherwise influence any employee or agent of Divergys to discontinue such employment or agency relationship with Divergys. In the event that you violate the terms of the restrictive covenants in this Section 13(j), you acknowledge and agree that the damages to Divergys would be difficult or impracticable to determine, and you agree that in such event, as Divergys’s sole and exclusive remedy therefore, you will pay Divergys as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with you (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to any of Divergys’s employees by you will be deemed to be a material breach of this Agreement, in which event Divergys shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive.
Divergys Insurance. Divergys agrees to maintain a general liability policy with a limit not less than $1,000,000 per occurrence, and such policies will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to you by certified mail.
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.
Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Harris County, Texas, such period will be extended to and through the next succeeding business day in Harris County, Texas.
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 you to Divergys regarding (a) any alleged breach of this Agreement by Divergys, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to Divergys either by U.S. mail or fax, unless such requirement is expressly and specifically waived by Divergys. All electronic documents and communications between the parties will satisfy any “writing” requirement under this Agreement.
Independent Contractor. Each party is an independent contractor of the other, and neither is an employee, partner or joint venturer of the other.
Subcontractors. Generally, Divergys does not utilize subcontractors; however, should Divergys elect to subcontract a portion of the Services, Divergys shall guarantee all work performed by any Divergys-designated subcontractor as if Divergys performed the subcontracted work itself.
Data Access/Storage. Depending on the Service provided, a portion of your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify us in the event that your company requires us to modify our standard access or storage procedures.
Attorneys’ Fees. If Divergys is required to bring an action to enforce the terms of this Agreement, Divergys shall be entitled to an award of the reasonable attorneys’ fees and costs that it incurred at all stages of the action, including without limitation, at trial and appeal.
Counterparts. The parties may sign and deliver this Agreement and any SOW in any number of counterparts, 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 and deliver this Agreement (or any SOW) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party will be entitled to rely upon the apparent integrity and authenticity of the other party’s signature for all purposes.
Divergys Does Not Provide Representation of Compliance or Legal Advice. Unless Divergys expressly states and agrees to in a SOW, Divergys does not represent or warrant that its provision of Services to you will constitute legal compliance by your business with any applicable law or regulation. While Divergys will strive to provide you Services that assist you in meeting applicable laws and regulations, ultimately the duty and risk of doing so is solely your risk. No Services (or advice) that Divergys provides shall constitute or be taken by you as legal advice. You shall engage your own legal counsel to determine which laws and regulations are applicable to your business, and what actions shall be taken in order for your business to remain in compliance.