Terms & Conditions
These Terms & Conditions (“Terms”) apply to Client purchases from WAMS, Inc., a California Corporation, herein referred to as “WAMS” for services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, "Product"). Client hereby engages and retains WAMS to render Services or provide Product, as specifically set forth and limited in the “Client Service Agreement” (“CSA”), Statements of Work (“SOW”), any Order (“Order”), Service Request, or Quote as agreed among the Parties (each an “Order”). Except as otherwise stated therein, subsequent SOWs or Orders shall be made a part of and subject to these Terms. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic Order or subsequent Order, or other mutually acceptable Order documentation, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes. In the event of any conflict between the Order and these Terms, the terms of the Order will prevail over these Terms.
WAMS may change these Terms at any time providing notification via e-mail 30 days before the changes are to become effective. Using the Services after the changes to these Terms become effective, means Client agrees to the new terms. If Client does not agree to the new Terms, Client must notify WAMS in writing of its objection to the new Terms, and WAMS has the right to then terminate the Services.
1. General Requirements & Conditions.
1.1. System. For the purposes of these Terms, “System” means, collectively, any computer network, computer system, peripheral or device that is tracked using WAMS’s Remote Monitoring and Management tool. To avoid a delay or negative impact on our provision of the Services, during the term of each Order Client agree to refrain from modifying or moving the System, or installing software on the System, unless WAMS expressly authorizes such activity. WAMS will not be held responsible or liable for changes made by client without authorization.
1.2. Maintenance; Updates. If patches and other software-related maintenance updates (“Update(s)”) are provided under an Order, WAMS will install the Updates only if WAMS has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or WAMS 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 or applicable vendor’s instructions.
1.3. Third-Party Service Providers. “Third-Party Service Providers” means Services provided by an entity or a Party other than the WAMS in fulfillment of the Order and/or subsequent Order requirements whose terms and conditions WAMS and Client may be legally bound.
1.4. Clients right to use the Third-Party Services is subject to Client’s understanding of, compliance with and consent to these Terms and of any Third-Party agreements, which WAMS does not have authority to vary, alter or amend.
1.5. WAMS may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms. The Third-Party Service Provider may require WAMS to sign a contract with the Third-Party Service Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may impose conditions and requirements upon Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or appear on our website which identifies the Third-Party Service Provider and a link to its terms and conditions or EULA. Client hereby agrees to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which Client has consented WAMS to contract upon its behalf.
1.6. Third-Party Product Vendors. “Third-Party Product Vendors” means software, machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the Order or subsequent Order requirements.
1.7. WAMS will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to Client, but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and WAMS will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product. The Third-Party Product Vendor may require WAMS to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”) and the terms of the Third-Party Contract may impose certain conditions and requirements upon Client. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or attached to the Order or subsequent Order which identifies the Third-Party. Client hereby agrees to review all Third-Party terms and conditions, and consent to those Third-Party terms and conditions which Client has consented WAMS to contract upon its behalf. Third-Party Product Vendor terms and conditions link of PDF can be found at our website and/or Order or subsequent Order as applicable.
1.8. Third-Party Products. Unless otherwise stated in a Order or subsequent Order, all hardware, software, peripherals, or accessories purchased through WAMS (“Third-Party Products”) are nonrefundable once the applicable Order or subsequent Order is placed in our queue for delivery. WAMS 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 WAMS 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 Order or subsequent Order, all Third-Party Products are provided “as is” and without any warranty whatsoever as between WAMS and Client (including but not limited to implied warranties).
1.9. Third-Party Support. If, in WAMS’s discretion, a hardware or software issue requires vendor or OEM support, WAMS may contact the vendor or OEM (as applicable) on Client’s behalf and pass through to Client all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $100, WAMS will obtain Client permission before incurring such expenses on Client behalf unless exigent circumstances require otherwise.
1.10. Subcontractors. “Subcontractors” means third-party to whom WAMS contracts to provide specified services to complete the services indicated in the applicable Order or subsequent Order.
1.11. Conditions of Service. Client System is eligible for provision of WAMS’s Services as outlined in the Order or subsequent Order or other contractual documents, provided the System is in good condition and WAMS’s serviceability requirements and site environmental conditions are met:
1.11.1. Client shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by WAMS’s representatives.
1.11.2. WAMS’s representatives shall have, and Client shall provide full access to the System to affect the necessary monitoring and/or supplemental services.
1.11.3. WAMS reserves the right to suspend or terminate these Terms or any Order or subsequent Order if, in its sole discretion, conditions at the service site pose a health or safety threat to any of WAMS’s representatives.
1.11.4. It is the responsibility of Client to promptly notify WAMS of any events/incidents that may impact the services defined within these Terms and/or any supplemental service needs.
WAMS shall provide services as defined in the Order or subsequent Order during WAMS’s regular business hours, unless otherwise specified in any subsequent Order, or other contract documents, and in accordance with WAMS’s IT Service policies then in effect.
Client agrees that Client will inform WAMS, prior to, Client making any modification, installation, or service performed on the System by individuals not employed or contracted by WAMS in order to assist WAMS in providing an efficient and effective System support response. Client will be billed the full cost, at WAMS’s hourly rate, to remediate and restore the Systems and/or Services to a state prior to change.
Only representatives authorized by WAMS will be eligible to access and service Client System. Any unauthorized access or service conducted on the System without the explicit consent of WAMS, which results in negative System performance, will not be covered by the monthly plan fee as documented in the Order or subsequent Order or other contract documents and will be billed according to WAMS’s labor rates as outlined in the Order or subsequent Order.
WAMS shall be obligated to provide service only at (a) the Service Site(s) as identified in the Order or subsequent Order; and (b) client systems as identified which is defined as client covered devices in the Remote Monitoring Management (“RMM”) platform. If Client desires to relocate, add or remove locations, Client shall give appropriate notice to WAMS of Client’s intention to relocate sixty (60) days in advance. WAMS reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by Client. Such right includes the right to refuse service at the relocation and/or new site.
1.12. Service Limitations. In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:
1.12.1. Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of these Terms. WAMS will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
1.12.2. Any unauthorized changes made to the System without WAMS’s written consent which causes issues or failures to the System, are beyond the responsibility of WAMS and Client will be billed the full cost to restore the System to its original state.
1.13. Conditions of Service. Onboarding Process. Client acknowledges and agrees that WAMS will have no responsibility for any deficiencies in the current operating systems and infrastructure until WAMS has had a reasonable opportunity to conduct a review of the current system and to provide Client with its recommendations, and Client has accepted and implemented same.
1.14. Offboarding Process. In the event of termination of Services by either party, WAMS will make reasonable accommodations to transfer Client’s account to Client or Client’s new managed service provider or other authorized agent (the “Onboarding Provider”). Client shall indemnify and hold harmless WAMS, its Subcontractors and their respective directors, officers, employees, consultants and agents for any claims or losses resulting from the activities of Client or the Onboarding Provider during the transition period from WAMS to the Onboarding Provider, inclusive of when Client obtains access to all super administrator accounts of their infrastructure. Transfer will require that Client’s account be fully paid at time of transfer inclusive of any offboarding charges.
1.15. Network Devices, Hardware and Systems: WAMS shall only be responsible for providing services to network devices, hardware and systems identified by the Client and WAMS and set forth in the latest Order or subsequent Order and covered by Remote Management Monitoring (Hereafter referred to as RMM.) WAMS may, in its sole discretion, deny requests to add devices, hardware or systems. The Client shall bear the responsibility to isolate and protect the system by not allowing additional devices, hardware or system on the system unless approved by WAMS. WAMS shall have no responsibility for any devices, hardware or systems or damage resulting therefrom that are added to the System without WAMS’s approval. WAMS shall have the right to cancel this contract if devices, hardware or systems are added without their approval. If Client obtains new devices, hardware or systems and wishes to request WAMS’s services to extend to new devices, hardware or systems, said extension shall not take effect unless and until both Parties agree in writing to a new Order and the device is added to the RMM. Said written, signed Order shall then become an addendum to this contract and incorporated herein. WAMS reserves the right to deny any requests for additional services and/or additional hardware/systems for any reason in their sole discretion.
1.16. Authorized Contact(s). Client understands and agrees that WAMS will be entitled to rely on any directions or consent provided to WAMS by any of Client Authorized Contacts, as indicated in an applicable Order or subsequent Order. If no Authorized Contact is identified in an applicable Order, then Client Authorized Contact will be the person(s) (i) who signed the Order, and/or (ii) who signed the applicable Order or subsequent Order. If Client desires to change Client Authorized Contact(s), please notify WAMS of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
1.17. Shared Administrator Credentials. If Client shares server, network, or software application administrative credentials, WAMS will not be held legally liable or responsible for any outages, errors, breaches, data loss and misconfiguration since multiple administrators from different companies jeopardizes the integrity of the support outlined in these Terms.
2.1. WAMS may provide various services under the umbrella Technology as a Service (“TaaS”) as part of any Services, with and without other direct Order(s) for such TaaS. This may include, but is not limited to, IT as a Service (ITaaS), Infrastructure as a Service (IaaS), Hardware as a Service (HaaS), Software as a Service (SaaS), Desktop as a Service (DaaS), and Networking as a Service (NaaS). These services provide hardware, software, and other IT related services as a monthly service. Such TaaS is the Property of WAMS and remains the property of WAMS.
2.2. Client agrees that the Services or TaaS outlined in any Order are the sole Property of WAMS, which retains a 100% security interest, and be maintained completely by WAMS.
2.3. Any/all software media and licenses from such Services will be stored and kept by WAMS and Client will not receive a physical or digital copy.
2.4. Client agrees to not access, configure, alter, reverse engineer, reload, or transport any of the Services provided by and/or owned by WAMS.
2.5. Client agrees that Client will not allow any staff member, vendor, or other third-party attempt or perform the following actions: share, distribute, access, install, reinstall, reload, alter, configure, reverse engineer, sell, resell, tamper with, alter, troubleshoot, service, repair, transport, or move any of the Services provided by WAMS.
2.5.1. Client agrees that any move or transport should be performed by WAMS according to normal service request procedures.
2.5.2. If WAMS determines that any such incident occurs, Client agrees that they will be liable to WAMS for any reasonable, incurred damages and/or fees to return any such service, application, software, or hardware to an operational state.
2.6. Client further agrees to be responsible for any and all costs for the repair or replacement of WAMS Property while in their possession should it be damaged or unrecoverable.
2.7. Client agrees to make all logical and earnest attempts to keep WAMS Property safe, secure, and protected while in their possession. WAMS may secure its Property with physical and digital access controls/mechanisms to prevent alterations, distribution, license violations, and/or damages.
3.1. These Terms cannot be terminated until all subsequent and active Orders are also terminated.
3.2. Termination of any Order in no way terminates these Terms or any other Order(s). Orders may only be terminated per the terms of that Order. Terminations for any other reason are not permitted, unless explicitly approved in these Terms or the corresponding Order.
3.3. Client agrees that upon termination of any Order, WAMS has no further obligation to Client for Products or Services provided by the pertinent Order. For any Order(s) that remain in effect, WAMS shall continue to perform as necessary.
3.4. Client agrees to return all WAMS owned or TaaS provided property, equipment, hardware, software, and licensing within five (5) days of service termination in a serviceable state and working order.
3.5. Early Termination:
3.5.1. Client may elect to terminate a Order subject to the terms of that Order. If any Order is terminated by Client prior to expiration, then Client agrees to pay WAMS an early termination equal to: a) any termination fees outlined for each terminated Order; b) all non-recurring fees WAMS experiences from suppliers and vendors in accordance with cancelling Client’s Services; and c) any outstanding invoices still owed; and d) all discounted or waived Setup and/or Onboarding fees.
3.6. WAMS reserves the right to terminate these Terms or any subsequent Order(s) for any of the following reasons:
3.6.1. violating any of the terms or conditions of these Terms;
3.6.2. Client performing prohibited or illegal actions in violation of WAMS policies or any other state/federal laws;
3.6.3. in the event Client’s business operations cease or Client is subject to the petition and proceedings of bankruptcy, receivership, insolvency, liquidation, assignment for the benefit of creditor, or similar law, which is not dismissed within ninety (90) days of being instituted;
3.6.4. any Client and its employees who are uncooperative, or otherwise not acting in a professional manner conducive of conducting business or the requested work to be performed;
3.6.5. maliciously sabotages work performed, network equipment, etc.;
3.6.6. any Client and its employees who promote or provide a hindrance to perform work requested or required;
3.6.7. for any reason at any time.
3.7. Termination Procedures:
3.7.1. Should these Terms or any supplemental Orders be terminated by either party, Client agrees that to the following terms:
3.7.2. WAMS has no further obligation to Client in any way for any reason and shall hold WAMS harmless;
3.7.3. Collection of monies owed for Services, current damages, are due within five (5) business days.
3.7.4. No further duties or monies are owed to Client;
3.7.5. Termination of a Order shall be provided by its terms and conditions and will be performed according to WAMS’s then-current policies and procedures and the following terms:
22.214.171.124. A Termination Request Date will be recorded for any Order requesting to be terminated by Client.
126.96.36.199. An Effective Termination Date will be established and used for billing and execution of request;
188.8.131.52. WAMS will assist Client in the orderly termination of Services up to the last day of Services and/or the Effective Termination Date;
184.108.40.206. Client agrees to fully cooperate with the orderly termination of Services according to WAMS’s policies and procedures;
220.127.116.11. Client agrees that any outstanding balances for Products, Services, Fees and Termination Fees from any Order(s) are due before or on the Effective Termination Date;
18.104.22.168. Client agrees that any services degradation or issues caused by another party during a transition may be billable and/or forfeit WAMS’s ability or obligation to remedy or provide Services for a Order.
22.214.171.124. Client agrees to return any property owned by WAMS, listed or not listed, in any Order(s) to WAMS within 5 days after the Effective Termination Date; and to grant WAMS permission to recover any property from Client’s locations if not returned and to compensate WAMS for any reasonable expenses accrued during the recovery;
126.96.36.199. WAMS may repossess its property without notice, upon breach of these Terms or any Order(s) by Client;
188.8.131.52. Client agrees that any property of WAMS’s, Products or Services that are unable to be removed by WAMS or returned by Client will be subject to ongoing and recurring fees to be paid by Client to WAMS until such Products or Services are removed by WAMS.
184.108.40.206. Upon written request of WAMS, Client agrees to promptly certify in writing that any Products owned by WAMS and all Services provided by WAMS have been either uninstalled or returned to WAMS, and if not, have been destroyed in an agreeable manner.
220.127.116.11. Client agrees that any documentation created by WAMS for WAMS’s use and to service Client will not be provided to Client or any third party as it is the property of WAMS. This includes, but is not limited to: documentation, network diagrams, maps, policies, installation guides, diagrams, vendor documentation, etc.
4.1. Client agrees to comply with the policies, provisions, and regulations set forth in these Terms and any Order(s).
4.2. Client agrees to have Products and Services monitored and maintained by WAMS to allow for proper usage, reporting, compliance, inventory, and billing levels and to allow audits and/or inspections as necessary.
4.3. Client agrees to not attempt or perform the following actions:
4.3.1. Sell, resale, tamper, alter, troubleshoot, repair, or move any WAMS provided Products and/or;
4.3.2. Share, distribute, install, reinstall, alter, reverse engineer, or attempt to alter any WAMS provided software, applications, hardware, equipment, license keys, Product(s), Service(s), and/or;
4.3.3. Allow any third party to alter, repair, or service WAMS provided Products and/or Services.
4.4. The Client and its employees, subcontractors, staff, or anyone else representing the Client will be categorized using WAMS guidelines as to what level of access and rights when utilizing WAMS services under any Order. The Client will provide this data to WAMS and maintain its currency. WAMS will approve, at its sole discretion, the level of access and rights of the Users defined.
4.5. Client understands and agrees to allow WAMS to send service and transaction related email communications, as allowed by Federal law, to users subscribed to and receiving the Services of any Order provided by WAMS.
5.1. WAMS does not support, warranty, cover, or include service work related to or for any of the following items as part of the Services rendered under these Terms or any Order(s), unless explicitly provided for in such Order(s):
5.1.1. Consumables such as printer maintenance kits, toner, ink, batteries, paper, etc.
5.1.2. The disposal of hardware equipment or data destruction to include pickup, destruction, and disposal in any Order(s), unless explicitly provided for.
5.1.3. Failures or downtime due to Client staff, employee, owner, or principals’ neglect, abuse, misuse, accidental damage, etc.
5.1.4. Problems or issues due to sabotage, malicious intent or acts, by Client or any of Client staff members, employees, owners, principals, or vendors.
5.1.5. Service and repair made necessary by the alteration or modification of equipment other than that authorized by WAMS, including alterations, software installations or modifications of equipment made by Client's employees or anyone other than WAMS.
5.1.6. Disabling, removing, tampering with, or modifying any WAMS Products or Services.
5.1.7. Failures or outages due to acts of God, terrorism, sabotage, building modifications, power failures or items generally well beyond WAMS’s control, such as fire, floods, disasters, etc.
5.2. WAMS will not be responsible to render any Services in any Order(s) due to circumstances beyond its control including, but not limited to, acts of God.
6. Client Data Ownership and Responsibility. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Client to WAMS.
7. Acceptable Use Policy. Client agrees to use the Services of Order(s) in a reasonable and lawful manner. Client agrees to not use, nor permit others to use, the Services for: (a) any unlawful, immoral, invasive, infringing, defamatory, fraudulent, or obscene purposes; (b) to send email or communications of any kind that does not adhere to the guidelines set forth in the CAN-SPAM Act of 2003; (c) to send any malicious code, malware, or attachment; (d) hacking of any kind; (e) to alter, steal, corrupt, disable, destroy, trespass, or violate any security or encryption, as to interfere with WAMS’s network(s) or its Clients data and networks, or any attempts thereof; (f) that is not in direct violation of any licensing or prescribed use from vendors or manufacturers; and (g) in a manner which may expose WAMS to any criminal or civil liability.
8. Staff. WAMS is an independent contractor and WAMS is not employed by Client. WAMS is hereby contracting with Client for the Services described in these Terms and WAMS reserves the right to determine the method, manner, and means by which the Services will be performed. WAMS is not required to perform the Services during a fixed hourly or daily time.
9. Non-Solicitation of Employees.
9.1. During the term of these Terms and for a period of twenty-four (24) months thereafter, Client agrees not to solicit, recruit, or employ any employee or former employees of WAMS without the prior written consent of an officer of WAMS. For any hire made by Client that violates this provision, Client agrees to pay WAMS reparations, at a minimum or more, of two years annual salary equivalent to Employee’s last pay stub, subject to WAMS’s sole discretion.
9.2. WAMS hereby agrees that it will not solicit, hire, or retain, in any capacity whatsoever any of Client's employees without written consent from Client.
10. Drug Free Workplace Certification. WAMS agrees to comply with the provisions of California law or regulations regarding maintenance of a Drug-Free Workplace. WAMS agrees to notify its employees that they are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession, or use of controlled substances.
11. Confidentiality and Non-Disclosure.
11.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
11.2. Client Confidential Information shall include any personally identifiable information or protected health information of Client employees, Client customers, and Client Data. Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, Client hereby agrees to defend, indemnify and hold harmless WAMS and any affiliated company, and WAMS’s respective present and former shareholders, officers, directors and employees and its attorneys and agents, and WAMS’s predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the "Indemnitee"), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys' fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of Client to comply with these Terms in proper handling of protected health information to the extent not caused by WAMS’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify WAMS of the necessity of same.
11.3. Confidential Information of each Party shall include the terms and conditions of these Terms and all Orders or subsequent Order’s, and/or other contract documents as well as business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes disclosed by such Party.
11.4. Confidential Information (other than Client Data) shall not include any information that:
11.4.1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
11.4.2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
11.4.3. is received from a third-party without breach of any obligation owed to the Disclosing Party, or
11.4.4. was independently developed by the Receiving Party.
11.5. Protection of Confidential Information. The Receiving Party shall:
11.5.1. protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,
11.5.2. not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms or otherwise in any manner to the Disclosing Party’s detriment, and
11.5.3. except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors and agents who need such access for purposes consistent with these Terms.
11.6. Non-disclosure. Neither Party shall disclose these Terms or any Order or subsequent Order and/or other contract documents to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.
11.7. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
11.8. Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy. In the event that return or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.
12. Intellectual Property. WAMS retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of these Terms, as well as any software, materials, or methods created prior to or after conclusion of any work “Intellectual Property”. Client acquires no right or interest in any such intellectual property, by virtue of these Terms or the work performed under these Terms.
12.1. Client may only use and disclose Intellectual Property in accordance with the terms of these Terms and applicable Order or subsequent Order and/or other contract documents. WAMS reserves all rights in and to the Intellectual Property not expressly granted in these Terms. Client may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Intellectual Property, without WAMS’s prior written approval. Except as expressly authorized in these Terms or any Order or subsequent Order and/or other contract documents, Client may not (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense or other transfer), or (b) operate the Intellectual Property in an outsourcing or WAMS business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Intellectual Property - applicable installation instructions or release notes will contain the relevant details.
13. License Agreements.
13.1. Subject to these Terms, WAMS grants Client a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Client own internal use. At all times, all software on the System must be genuine and licensed, and Client agrees to provide WAMS with proof of such licensing upon its request. If WAMS requires Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of WAMS providing its Services to Client.
13.2. Software Installation or Replication. If WAMS is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. By of providing any software to WAMS will be deemed Client affirmative acknowledgement to WAMS that Client has a valid license that permits WAMS to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client equipment for the installation of unlicensed software. Client will indemnify and hold harmless WAMS against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Client providing infringing materials to WAMS or any Client breach of this Section.
13.3. Pre-Existing License Agreements. Any software product provided to Client by WAMS as a reseller for a third-party, which is licensed to Client under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
13.4. Portions of the Services may require Client to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required to provide the Services to Client, then Client hereby grants WAMS permission to accept the EULA on Client behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. Client agrees 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, WAMS is required to comply with a third-party EULA and the third-party EULA is modified or amended, WAMS reserves the right to modify or amend any applicable Order or subsequent Order with Client to ensure its continued compliance with the terms of the third-party EUL Client agrees to hold harmless and Indemnify WAMS against Client violation of any of the terms and conditions included in the subject EULA.
14. Regulatory Compliance. Any software or service provided by WAMS is not intended to bring Client into full regulatory compliance with any rule, regulation, National Standard or requirement. The software, service, or solutions may aid Client’s efforts to achieve regulatory compliance, however, WAMS does not provide comprehensive compliance solutions.
15. Unauthorized Information Transfer. In no event, except for the willful misconduct or gross negligence on its part, shall WAMS or its subcontractors, whether under these Terms, a Order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach or other form of cyberattack, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Client's data or Systems are breached because of the distribution of and Client’s response to, unsolicited email, direct mail, facsimiles, unsolicited text messages, voice calls, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
16. Extraordinary Events. In no event shall WAMS or its subcontractors, whether under these Terms, an Order or subsequent Order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of a cyberattack or any other event not contemplated by these Terms.
17. Marketing. Client agrees to allow WAMS to use any obtained testimonials or case studies, verbal or written, from received Services or project implementations for marketing purposes while keeping sensitive Client data and information confidential. Client agrees to allow WAMS to use its name and staff member names for use in marketing materials, both electronic and printed, strictly and only for use by WAMS in its marketing and sales initiatives.
18. Governing Law. These Terms shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflict of law principles. Any controversy, claim, defect or default arising out of or related to this Agreement which cannot be resolved within thirty (30) days shall be submitted to final and binding arbitration. The parties understand that they are foregoing their right to resolution of their disputes in a court of law by a judge or jury in exchange for the benefits of a speedy, relatively inexpensive, and impartial dispute resolution procedure. The arbitration shall be held in Orange County, California, in accordance with the then-current National Rules for the Resolution of Commercial Disputes of ADR Services, Inc. , a copy of which is available upon request to the ADR Services, Inc. offices, or the California Civil Procedure Code §§ 1282 et seq. if ADR Services, Inc. is unable to administer the arbitration, except as otherwise provided in this Agreement. The arbitrator shall be selected by mutual agreement of the parties; if the parties cannot so agree, then the arbitrator shall be selected in accordance with the ADR Services Inc. Rules. The arbitrator shall have exclusive authority to resolve any dispute relating to the arbitrability of any claim or matter. Any disputes between the parties less than $5,000 shall be settled in small claims court in Orange County, California.
19. Warranty. WAMS warrants that it or its subcontractors, will perform the services substantially in accordance with the specifications set forth whether under these Terms, Order or subsequent Order, and/or other contract documents or otherwise in connection with any of them. For any breach of the foregoing warranty, WAMS or its contracted subcontractors, will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to WAMS specifying in reasonable detail such non-conformance. If WAMS concludes that conformance is impracticable, then WAMS will refund all fees paid by Client to WAMS hereunder, if any, allocable to such nonconforming Services.
Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by WAMS product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than WAMS, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by WAMS (ii) misused, abused, or not operated in accordance with the specifications of WAMS or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than WAMS or persons approved or designated by WAMS.
Notwithstanding the above, WAMS does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. WAMS does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery or performance.
20. Limitation of Liability.
20.1. Neither WAMS nor its affiliates, subsidiaries, employees, contractors, agents or suppliers shall be liable to Client for any special, indirect, incidental, punitive or consequential damages (including without limitation, lost profits, lost revenues, data loss or recovery, loss of business opportunity, and the consequences or effects of such events), either in contract or tort, arising out of or related to these Terms, Order(s), or the Services, however caused and under whatever theory of liability (including without limitation, strict liability and negligence), even if WAMS has been advised of the possibility of such damages in advance or could have been reasonably foreseen by WAMS.
20.2. Client agrees that the total liability of WAMS and our affiliates and your sole remedy for any claims regarding the Services is limited to your right to terminate these Terms. Further, should a Court of applicable jurisdiction nonetheless find that remedy is not exclusive or that WAMS is for any reason nonetheless liable for money damages, WAMS’s cumulative liability for all claims of any kind arising out of or related to these Terms, whatever based on contract, tort, including, without limitation, strict liability and negligence, warranty or on other legal equitable principles shall be limited to strict money damages and shall not exceed (a) in the case of one-time Services, the amount of fees paid by Client for the Service(s) under the applicable Order(s) giving rise to the claim for damages; and (b) in the case of recurring Services, the amount of fees paid by Client for the Service(s) under the applicable Order(s) during the 12-month period immediately preceding the event giving rise to the claim for damages. The existence of more than one claim shall not enlarge that limitation of liability.
20.3. Except as expressly provided in these Terms, Order you acknowledge that (a) WAMS is in no manner responsible for any action or inaction of any third party, including, but not limited to, hardware or software vendors or Internet service providers; (b) WAMS has not represented that the Services shall be uninterrupted, error-free, or without delay; and (c) WAMS does not and cannot control the flow of data through the Internet, and such flow depends in large part on the performance of third parties whose actions or inaction can, at times, produce situations in which connections to the Internet (or portions thereof) may be impaired or disrupted. Accordingly, you acknowledge that WAMS disclaims all liability related to events outside of WAMS’s control and/or in the control of third parties, and you shall have no right to rely upon any representation or warranty of any third party in respect to the Services. Further, you acknowledge that, in providing the Services, WAMS shall necessarily rely upon information, instructions, and services from you, employees and agents, and other third parties providing computer and communications hardware, software, and Internet services. Except as expressly provided in these Terms, or Order, you fully assume the risk associated with errors in such information, instructions, and services.
21. Mutual Indemnification. EACH PARTY AGREES TO THE FULLEST EXTENT PERMITTED BY LAW SHALL AT ALL TIMES DEFEND, INDEMNIFY, PAY, SAVE AND HOLD THE OTHER PARTIES AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, SUBCONTRACTORS, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “MUTUALLY INDEMNIFIED PARTIES”) HARMLESS FROM EACH AND ANY AND ALL LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES), COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES AND ANY OTHER REASONABLE COSTS OF LITIGATION) (HEREINAFTER COLLECTIVELY, THE “CLAIMS”) THAT ANY OF THE MUTUALLY INDEMNIFIED PARTIES MAY SUFFER, SUSTAIN OR INCUR TO THE EXTENT CAUSED BY THE NEGLIGENCE OF THE MUTUALLY INDEMNIFIED PARTIES ARISING OUT OF THESE TERMS.
THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE; AND (III) GIVING SOLE CONTROL OF THE DEFENSE AND ANY RELATED SETTLEMENT NEGOTIATIONS TO THE INDEMNIFYING PARTY WITH THE UNDERSTANDING THAT THE INDEMNIFYING PARTY MAY NOT SETTLE ANY CLAIM IN A MANNER THAT ADMITS GUILT OR OTHERWISE PREJUDICES THE INDEMNIFIED PARTY, WITHOUT CONSENT.
22. Assignment. These Terms shall not be assigned by Client without the prior written consent of WAMS.
23. Successors and Assigns. All of the terms and provisions of these Terms shall be binding upon, shall inure to the benefit of, and be enforceable by the successors and assigns of the parties to these Terms.
24. Severability. Any provision of these Terms found to be invalid, void or unenforceable shall not affect the enforceability of the remaining provisions of these Terms, and therefore shall nevertheless continue in full force without being impaired or invalidated in any way.
25. Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations under these Terms and Conditions or any Order or subsequent Order 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, pandemic, 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 solution, or if such loss, delay or failure to perform was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic, or other physical event and civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
26. Client Insurance.
26.1. Commercial Property Insurance. Client shall secure at Client own cost and expense Property Insurance for Client equipment that is part of the provisions of the Services.
26.2. Cyber Insurance. Client acknowledges that Client is solely responsible for obtaining and maintaining, for the duration of these Terms, its own Cyber Liability Insurance to adequately insure its cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client's specific coverage and policy limit requirements. Client acknowledges that WAMS does not provide Client with any form of Cyber Liability or other insurance coverage in connection with the Services or an executed Order or subsequent Order, and that Client’s use of the Services does not, in any way: (i) replace a Cyber Liability policy, (ii) mitigate Client’s need for Cyber Liability insurance coverage or (iii) relieve Client’s responsibility for obtaining its own Cyber Insurance coverage.
26.3. Mutual Waiver of Subrogation. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD WAMS ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF SERVICE.
27.1. Notices and correspondence to WAMS should be sent to:
135 S State College Blvd.
Brea, CA 92821
Notices to Client will be sent to physical, mailing, or billing address on file or address above.
28.1. WAMS may make changes to these Terms upon thirty (30) days’ written notice to Client, advising of the change and the effective date thereof. Utilization of WAMS’s Services by Client following the effective date of such change shall constitute acceptance by Client of such changes. Otherwise, these Terms may not be modified except by the written consent of both parties.
28.2. No oral modification, waiver, or amendment of any provision or terms and conditions of these Terms or any Order shall be effective unless made in writing specifically referring to those terms and conditions.
29. Mutual Representations. Each party represents, warrants and covenants that, as of signature dates and continuing throughout the Statement of and the term of any Order(s): (a) it is a corporation duly incorporated, validly existing and in good standing under the laws of the state in which it is incorporated, and in good standing in each other’s jurisdiction where the failure to perform in good standing would have a material adverse effect on its business or its ability to perform its obligations hereunder; (b) it has all necessary corporate power and authority to enter into these Terms, and to perform its obligations hereunder, and the execution of these Terms, and consummation of the transactions contemplated thereby have been duly authorized by all necessary corporate actions on its part; and (c) it shall comply with all laws in connection with the Services and otherwise under these Terms, including, without limitation, the procurement and renewal of all approvals, registrations, permits, certifications, authorizations, licenses or similar documentation as may be required by any administrative and regulatory authorities. Upon request, a party will supply copies of all such approvals, registrations, permits, certifications, authorizations, licenses or similar documentation to WAMS for its records.
30. Survivability. Client’s obligations under sections Proprietary and Confidential Information, Indemnification, and Limitation of Liability shall survive the expiration or termination of these Terms or Order.
31. Entire Agreement. These Terms, together with all CSA’s, SOW’s, Order(s), Attachments, Addendums, Amendments, and electronic/online policies referenced herein as URLs, embodies and incorporates the entire agreement and understanding between Client and WAMS with respect to the matters covered herein. These Terms supersedes all prior written oral or written agreements and understandings relating to the subject matter of these Terms. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in these Terms will affect, or be used to interpret change or restrict, the express terms and provisions of these Terms. Except as otherwise expressly permitted in these Terms, these Terms may not be supplemented, modified, or amended except by a written instrument which is signed by both parties.
 Client is hereby defined as the individual or company that appears in any signed “Client Service Agreement” (“CSA”), Statements of Work (“SOW”), any Order, or Quote between Client and WAMS.