Last updated July 21, 2020. Prior versions are available here.
This page contains links to the general terms and other conditions that are part of any services order issued by American CyberSystems, Inc. d/b/a ACS Solutions and/or any of its affiliates, or any other document that expressly incorporates these General Terms and portion of these other conditions.
These General Terms and other Conditions (“General Terms”), shall govern any agreement, service order or any other document that otherwise incorporates by reference these General Terms. For purpose of these General Terms, “Affiliate” shall mean any company that has American CyberSystems, Inc. as its ultimate parent company; “ACS Solutions” shall mean American CyberSystems, Inc. d/b/a ACS Solutions; “Company” shall mean either ACS Solutions or the named Affiliate identified in a Service Order or other document incorporating these General Terms; “Counterparty” shall mean the entity identified in a Service Order or other document incorporating these General Terms; and “Party” or “Parties” shall mean either ACS, the identified Affiliate or the Counterparty, as applicable. If the Company and Counterparty have entered into any other agreement, then these General Terms will control in the event of such conflict.
Subject to these General Terms, the Company agrees to provide the “Services” described in the Service Order or other document that incorporates these General Terms (collectively “Service Order”). The Services shall be provided and accepted in accordance with the specific terms, limitations and conditions set forth in these General Terms. To the extent of any conflict between these General Terms and the Service Order, these General Terms shall first control, then the Services Order.
Term and Termination
Unless otherwise stated, the term of Service Order shall begin on the Effective Date and shall remain in effect until terminated as provided in this Section (“Term”).
Either Party may terminate a Service Order, with or without cause, upon at least fifteen (15) days’ prior written notice to the other Party.
Either Party may terminate any Service Order then in effect in the event the other Party (the “Failing Party”) (i) becomes insolvent, is dissolved or liquidated, (ii) files, or has filed against it, a petition in bankruptcy and, in the case of an involuntary petition, such petition is not dismissed within thirty (30) Days, (iii) makes a general assignment for the benefit of its creditors, or (iv) ceases conducting business in the ordinary course ((i) through (iv) (collectively the “Failing Business Conditions”). In the event any of the Failing Business Conditions are reasonably expected to occur, or, if it is not reasonable to expect at least one (1) of these conditions to occur but it does in fact occur, then the Failing Party must notify the non-Failing Party in writing within three (3) Days after the Failing Party forms its opinion, in good faith, that at least one (1) of the conditions is reasonably expected to occur or, if the condition does in fact occur even though it was not reasonably expected by the Failing Party, then the failing Party must notify the non-Failing Party in writing immediately but in no event more than one (1) Day thereafter.
In the event that Counterparty terminates a Service Order, in addition to any and all remedies set forth in these General Terms and as may permitted by applicable law, the Counterparty shall, within five (5) days after demand by the Company, pay the Company (i) for all Services rendered by it through the date of termination (including for work-in-progress), (ii) for those costs reasonably incurred in anticipation of performance of such Services to the extent they cannot reasonably be eliminated or avoided by the Company, (iii) for any other termination costs reasonably incurred by the Company, including, but not limited to, cancellation or termination of any secondary contracts it reasonably undertook in anticipation of performance of the Services, and (iv) for any actual damages suffered by the Company. For purposes of clarity, not limitation, the rights set forth in this Section are in addition to any other rights or remedies set forth herein or under applicable law, and the exercise of the rights set forth in this Section shall not constitute an election of remedies.
Fees, Expenses and Invoicing
The fees for the Services rendered shall be defined in each Service Order. Unless otherwise stated in a Service Order, invoiced amounts are due in full within thirty (30) days after the date of the invoice (“Due Date”). Any amount not received by the Due Date will be past due and subject to interest at the lesser of one and one-half percent (1 1/2%) per month or the highest rate permitted by applicable law. If Counterparty has failed to pay its invoices by the Due Date three (3) times in any twelve (12) month period or if there has been a material, adverse change in its financial condition, Company may, upon thirty (30) days prior notice, require a deposit from Counterparty. To dispute a charge on an invoice, Counterparty must identify the specific charge in dispute and provide a written explanation of the basis of the dispute by the Due Date. Counterparty may withhold payment of a charge subject to good faith dispute provided (i) Counterparty pays the undisputed portion of all charges by the Due Date; and (ii) Counterparty cooperates reasonably with Company’s efforts to investigate and resolve the dispute. Counterparty acknowledges and agrees that until any and all past due invoices are paid in full, including any interest assessed thereon and any Pass-Through Taxes/Fees/Charges, Company shall have the right, upon notice to the Counterparty, to immediately suspend and/or terminate the services and any work in progress under any Statement of Work for which the invoice is past due, in addition to such other remedies it may have at law, in equity or elsewhere in these General Terms. Any such suspension and/or termination shall not relieve the Counterparty of its obligation to pay all charges, fees, and other amounts due that accrued prior to such suspension and/or termination, and such suspension and/or termination shall not result in any liability whatsoever to Company or its Affiliates.
Counterparty shall pay any excise, sales, use, intangibles, property or other taxes, fees, and other charges and surcharges imposed upon Company pursuant to any applicable law, rule, regulation or other requirement of law which results from, or is based upon, the provision of the Services by Company to the Counterparty under each Service Order (collectively the “Pass-Through Taxes/Fees/Charges”). For purposes of clarity, Pass-Through Taxes/Fees/Charges shall not include taxes based on Company’s revenue, profit or income. Company will invoice the Counterparty for any Pass-Through Taxes/Fees/Charges, which shall be due within thirty (30) Days of invoice unless otherwise specified in such invoice. The foregoing shall not apply if Counterparty is a governmental entity or a unit of government to extent the Pass-Through Taxes/Fees/Charges do not apply to such entity or unit, or such entity or unit is otherwise exempt from paying such Pass-Through Taxes/Fees/Charges.
Mutual Non-Disclosure of Confidential Information and Trade Secrets.
The Parties shall not (i) use, disclose or reverse engineer the Trade Secrets or the Confidential Information of the other Party for any purpose other than in connection with the performance of the Services; or (ii) upon the termination of all Service Orders, (A) retain Trade Secrets or Confidential Information of the other Party, including any copies existing in any form (including electronic form) which are in either Party’s possession, custody or control, or (B) destroy, delete or alter the Trade Secrets or Confidential Information other Party without prior written consent from the other Party.
Each Party shall protect the confidentiality of the other Party’s Confidential Information and Trade Secrets at least as stringently as it protects its own confidential information, but in no event may each Party exercise, or permit any personnel to exercise, less than a reasonable degree of care to protect such information. Access to the Confidential Information and Trade Secrets of the other Party shall be restricted to each Party and its personnel on a strict need-to-know basis. Each Party shall not disclose any Confidential Information or Trade Secrets of the other Party to any third party without the prior written consent of the other Party. The Confidential Information and Trade Secrets of the other Party may not be copied or reproduced without the other Party’s prior written consent.
In the event that either Party required by law or court order to disclose any Confidential Information or Trade Secrets of the other Party, it will (i) promptly notify the other Party in writing and in no event later than ten (10) business days prior to any such disclosure; (ii) cooperate with the other Party to preserve the confidentiality of such Confidential Information or Trade Secrets consistent with applicable law; and (iii) use its best efforts to limit any such disclosure to the minimum disclosure necessary to comply with such law or court order.
The obligations under this Section of these General Terms shall: (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a trade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Term and for two (2) years after the date such information ceases to be used in connection with the Services.
To the extent that any of the Service contemplated under these General Terms require the Company to comply with the any consumer data processing laws, including without limitation European Union’s General Data Protection Regulation, the California Consumer Privacy Act of 2018, etc., the Parties shall comply with the Data Processing Addendum (“DPA”). If there is any inconsistency or conflict between the DPA and these General Terms, then as it relates to data protection or processing, the terms of this DPA shall govern and control and shall survive any termination or expiration of these General Terms.
Security Procedures, Data Protection and Support.
Company will inform its assigned personnel to abide by Counterparty’s standards and procedures, provided that Counterparty communicates such standards and procedures to Company in writing.
Company agrees that any software installed by Company shall not knowingly contain any computer code or any other procedures, routines or mechanisms designed by Company to: (a) disrupt, disable, harm or impair in any way such software’s (or any other software’s) orderly operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral (sometimes referred to as “time bombs,” “time locks” or “drop dead” devices); (b) cause such software to damage or corrupt any of Counterparty’s data, storage media, programs, equipment or communications, or otherwise interfere with Counterparty’s operations, or (c) permit Company to access such software (or Counterparty’s computer systems) to cause such disruption, disablement, harm, impairment, damage or corruption (sometimes referred to as “traps”, “access codes” or “trap door” devices). Company will not unilaterally (i.e., without appropriate judicial order) remove, uninstall, repossess, modify, delete, damage, deactivate, disable or interfere with the software because of any dispute relating a Service Order.
Counterparty will provide Company with all information relevant to services to be performed hereunder, will provide an environment where its personnel can work efficiently (for the Services to be performed at any of Counterparty’s sites), and will cooperate and provide Company with all such assistance as may reasonably be required to properly perform the Services.
Counterparty acknowledges that its timely provision of and access to office facilities, equipment, assistance, cooperation, complete and accurate information and data (including sample data being representative of production data) from its officers, agents, employees and third parties, and suitably configured computer products (including software, hardware and documentation) (collectively, “Support”) are essential to performance of any Services, and that Company will not be liable for any delay or deficiency in providing Services if such delay or deficiency results from Counterparty’s failure to provide Support. Counterparty acknowledges that such delays or deficiencies in providing Services shall be subject to change orders and may result in additional charges for the Services.
Work Product will be deemed “work made for hire” as such term is defined in the Copyright Act of 1976, as amended, and will be the sole and exclusive property of Counterparty. To the extent that (i) any Work Product may not by operation of law be deemed a work made for hire, or (ii) ownership rights with respect to any Work Product may not vest in Counterparty as contemplated hereunder, then, in each such case, contingent upon full and final payment of all amounts due hereunder, these General Terms will automatically operate as an irrevocable grant and agreement to transfer, sell and assign by Company to Counterparty of all right, title and interest to such Work Product. At Counterparty’s expense, Company agrees to provide Counterparty all reasonable assistance and to execute all documents as may be reasonably necessary to perfect, preserve, register and/or record Company’s rights in any such Work Product. Work Product does not include Company Materials, as defined below.
The term “Company Materials” means all software, methodologies, tools, compilers, specifications, concepts, techniques, documentation and/or data utilized by Company in the performance of Services, together with any and all additions, enhancements, improvements or other modifications thereto (whether or not made during the performance of the Services), which (a) has been originated or developed by Company, its affiliates or by third parties outside of the scope of the Services, or (b) has been purchased by or licensed to Company. Company Materials includes all patent, copyright, trade secret and other intellectual property rights related to any of the foregoing. Counterparty acknowledges that in providing Services under these General Terms, Company may utilize aspects of Company Materials. To the extent that any Company Materials are embedded into the Work Product and necessary for its proper performance, Company grants Counterparty a restricted, royalty-free, non-exclusive, non-transferable license to use such Company Materials solely for Counterparty’s internal use of the Work Product (as defined below) delivered to Counterparty by Company hereunder (including any derivative thereof), and not on a standalone basis.
Except for the license expressly granted in this Section, nothing contained in these General Terms, the Service Order or otherwise shall be construed to grant to Counterparty any right, title, license or other interest (whether by estoppel, implication or otherwise), in any Company Materials, and Company reserves all right, title and interest in and to all Company Materials. No other licenses or rights with respect to any Company Materials are granted, either directly or indirectly, by implication, estoppel or otherwise.
Counterparty’s rights to use, and obligations with respect to, any programming, materials or data obtained from third-party vendors, regardless of whether or not obtained with the assistance of Company, will be determined in accordance with the licenses and policies of such vendors; and Counterparty assumes all responsibility for compliance with those requirements.
Nothing in these General Terms, or any Service Order shall preclude or limit Company from providing Services or developing materials for itself or its customers that may be similar to those provided to Counterparty. Notwithstanding the foregoing, Company will not use the Work Product or any of Counterparty’s confidential information except in the performance of Company’s obligations to Counterparty under these General Terms. Provided that no confidential information of Counterparty is used in connection therewith, nothing in these General Terms shall preclude personnel or Company from using any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of providing any Services performed hereunder, or from using the information that such individuals retain in their unaided memories related to information technology, including ideas, concepts, know-how and techniques.
Representations and Warranties
The Parties represent and warrant that: (a) during the term of these General Terms and during any period of time in which Company performs Services, each Party will not be subject to any legal or contractual duty or agreement that would prevent, prohibit or interfere with a Party’s obligations hereunder or in connection with the performance of the Services; (b) each Party has full right and power to enter into these General Terms and each applicable Service Order; (c) Company will provide all Services, and fulfill all of its obligations hereunder, in good faith and in a professional, responsible and capable manner; (d) neither Party will knowingly violate any intellectual property rights of any third party in connection with the Services; and (e) all Services, including, but not limited to, any deliverables set forth in an applicable Service Order, will be original unless otherwise agreed in writing by the Parties.
If Company provides goods, such as hardware or materials, produced by a third party, or has been engaged by Counterparty to install, implement, integrate, maintain or upgrade a third-party software program, application, service, hardware, component, and/or related material (collectively, “Third-Party Products”), Counterparty acknowledges that Company is not the author, developer, provider or seller of such Third Party Products, but instead has been retained by Counterparty to provide, install, implement, integrate, maintain or upgrade such Third Party Products in Counterparty’s current computing environment. As such, Counterparty agrees that Company will not be liable for any defects, flaws, programming errors, inefficiencies or malfunctions in any such Third-Party Products, or for any lack of functionality in or non-performance of the Third-Party Products. Counterparty agrees: (a) that its exclusive remedies with respect to any Third-Party Products will be against the vendor or provider thereof (“Third-Party Supplier”); (b) not to assert against Company any claim based on or related to Counterparty’s use of any Third-Party Products; and (c) that its use of any Third-Party Products will be governed solely by the terms of Counterparty’s license agreement(s) with the Third-Party Supplier and/or the terms and conditions mandated by a Third-Party Supplier.
COUNTERPARTY ACKNOWLEDGES THAT INFORMATION TECHNOLOGY SECURITY IS A DYNAMIC FIELD AND AGREES THAT IT WILL NOT HOLD COMPANY RESPONSIBLE FOR FAILURE TO DISCOVER ALL SECURITY RISKS AND ISSUES. IF SECURITY SERVICES ARE PROVIDED UNDER THESE GENERAL TERMS, COMPANY MAKES NO WARRANTY, GUARANTEE OR REPRESENTATION, EXPRESS OR IMPLIED, THAT ALL SECURITY THREATS AND VULNERABILITIES CAN OR WILL BE DETECTED OR THAT THE PERFORMANCE OF THE SERVICES WILL RENDER COUNTERPARTY’S SYSTEMS INVULNERABLE TO SECURITY BREACHES. COUNTERPARTY SHALL BE RESPONSIBLE FOR COUNTERPARTY’S OWN NETWORK SECURITY POLICY AND PROCEDURES. COUNTERPARTY ACKNOWLEDGES THAT SERVICES MAY BE AFFECTED BY TRANSMISSION OR CAPACITY LIMITATIONS OF INTERNET OR OTHER TELECOMMUNICATIONS PROVIDERS, AND THAT SUCH LIMITATIONS ARE BEYOND COMPANY’S CONTROL. COMPANY SHALL HAVE NO LIABILITY TO COUNTERPARTY OR ANY THIRD PARTY FOR CLAIMS THAT ARISE FROM OR ARE RELATED TO SUCH LIMITATIONS. FURTHER, IF VOICE-OVER IP TELEPHONY SERVICES ARE PROVIDED UNDER A SERVICE ORDER, COMPANY SHALL HAVE NO LIABILITY TO COUNTERPARTY OR TO ANY THIRD PARTY FOR CLAIMS RELATED TO MISDIRECTED OR INCOMPLETE CALLS, INCLUDING BUT NOT LIMITED TO 911 EMERGENCY CALLS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND FOR SERVICES, WHETHER SUCH WARRANTY BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE. THE PREDOMINANT PURPOSE OF THESE GENERAL TERMS IS THE PROVISION OF IT-RELATED SERVICES TO COUNTERPARTY.
Compliance with the Law.
Company acknowledges and agrees to fully observe and comply with all applicable local, state and federal laws and regulations and orders of any government or governmental agency or department in the performance of the Services.
The Company is an Equal Opportunity Employer and prohibits any kind of unlawful discrimination and harassment. The Company is committed to the principle of equal employment opportunity for all employees and to providing employees with a work environment free of discrimination and harassment on the basis of race, color, religion or belief, national origin, citizenship, social or ethnic origin, sex, age, physical or mental disability, veteran status, marital status, domestic partner status, sexual orientation, or any other status protected by the laws or regulations in the locations where it operates. The Company shall comply and require all suppliers, service providers, contractors, sub-contractors, vendors, etc. to comply with all applicable federal, state, and local equal employment opportunity statutes, rules, and regulations.
The Company remains committed to operating with the highest ethical business standards and integrity in the communities where it operates as reflected in its Code of Conduct. The Company requires all of its suppliers, service providers, contractors, sub-contractors, vendors, etc., to undergo a due diligence review to ensure that the entity is of the highest integrity, and is committed to the same values and operating principles as the Company and to agree to adhere to the Supplier Code of Conduct (a current copy of which is located at https://www.acsicorp.com/Supplier-Code-of-Conduct or is otherwise available from Company upon request) and as may be updated from time to time.
Indemnification and Limitation of Liability.
Each Party shall fully indemnify, hold harmless and defend the other Party from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arise out of or relate to, in whole or in part, (a) violation of applicable law, or (b) any wilful misconduct or gross negligence by or caused by the other Party.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO PARTY FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST REVENUES, PROFITS, SAVINGS OR BUSINESS) ARISING UNDER OR IN CONNECTION WITH THESE GENERAL TERMS OR SERVICE ORDER, REGARDLESS OF HOW SUCH LOSSES, DAMAGES OR EXPENSES ARISE AND IRRESPECTIVE OF WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR EXPENSES. IN ADDITION TO THE FOREGOING, EACH AFFILIATE SHALL ONLY BE LIABLE FOR THOSE OBLIGATIONS AND CLAIMS EXPRESSLY ARISING OUT OF SERVICE ORDER. THE PARTIES AGREE IN NO EVENT SHALL THE LIABILITY OF COMPANY TO COUNTERPARTY EXCEED THE AMOUNTS PAID BY COUNTERPARTY UNDER EACH APPLICABLE SERVICE ORDER.
Relationship of Parties
The Parties acknowledges and agrees that Company is an independent contractor. The Company shall be fully responsible for its own federal, state and local taxes and acknowledges that, as an independent contractor. The Company further understands and agrees that neither Company nor any personnel are covered under the Counterparty’s worker’s compensation insurance or state unemployment insurance coverages. The Parties acknowledge and agree that these General Terms do not constitute or appoint Company or any personnel as an agent of the Counterparty for any purpose whatsoever.
Company agrees to maintain for itself and on behalf of its employees: (a) Worker’s Compensation in compliance with any applicable federal or state labor code, act, law or statute where any of the aforementioned Company Group Personal perform Services, in an amount not less than $1,000,000 per accident per employee; (b) Employer’s liability insurance of not less than $1,000,000 per accident per employee; (c) Commercial/Comprehensive General Liability insurance in an amount of not less than $1,000,000 combined single limit per occurrence for bodily injury, personal injury and/or property damage; (d) if a vehicle will be used in connection with the Services, then Commercial/Comprehensive Automobile Liability insurance in an amount of not less than $500,000 combined single limit per occurrence or aggregate of equivalent for bodily injury and property damage as a result of any one occurrence including coverage for Owned, Hired and Non-Owned Automobiles; (e) Primary Cyber/Errors & Omissions, aggregate limits of not less than $3,000,000 insurance against acts, errors or omissions committed by Company Group’s Personnel under these General Terms; (f) Crime, $2,000,000 limit with third-party coverage; and (g) Umbrella coverage, $5,000,000 limit for each occurrence and aggregate.
Unless otherwise directed by Counterparty in writing, Company may originate publicity, news releases, technical articles or other public announcements, written or oral, whether to the public press or otherwise, that generally refer to the Service Order and/or the existence of an arrangement between the Parties.
These General Terms and the Service Order constitute the entire agreement between the Parties. These General Terms and the Service Order supersede any prior communications, agreements or understandings, whether oral or written, between the Parties.
The provisions of this General Terms are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the remaining provisions and any partially enforceable provisions shall remain in full force and effect. If there is a dispute about the language of General Terms, the fact that one Party drafted these General Terms or any portion thereof shall not be used in its interpretation.
The Company’s failure to enforce any provision of these General Terms shall not act as a waiver of that or any other provision. The Company’s waiver of any breach of this General Terms shall not act as a waiver of any other breach.
The Company may amend or modify the General Terms at time, at its sole discretion, and with or without notice to Customer. Any such modification and/or amendment shall be effective immediately upon public posting of any such modification and/or amendment of such terms.
Any notice required to be given pursuant to these General Terms or the Service Order shall be deemed to have been given: (a) when delivered personally, by courier or by express service; (b) five (5) days following its deposit into the United States mail (certified mail, return receipt requested), addressed to the other Party at the address set forth on the Service Order.
Any Service Order shall be assignable to, and shall inure to the benefit of, each Party’s successors and assigns, including, without limitation, successors through merger, name change, consolidation, or sale of a majority of a Party’s stock or assets, and shall be binding upon the other Party.
Each Service Order is made for the benefit of the parties to it and does not confer any third-party rights to any other party.
A Party (the “Force Majeure Party”) shall not be deemed in default of the General Terms, nor shall it hold the other Party (the “Non-Force Majeure Party”) responsible for, any cessation, interruption, or delay in the performance of its obligations (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott, unavoidable casualty, embargo, unforeseen government order, act of a civil or military authority, or any similar unforeseen event that renders performance commercially implausible and such event is beyond the reasonable control of the Force Majeure Party; provided that the Force Majeure Party (a) gives prompt written notice (to the extent reasonably possible under the circumstances) to the Non-Force Majeure Party, and (b) takes steps (to the extent reasonably possible under the circumstances) to mitigate the effects of the force majeure event.
As a condition precedent to the Parties’ obligations under these General Terms, the Parties shall enter into, and abide by, the Governing Law and Mandatory Arbitration Agreement set forth in these General Terms and incorporated herein by reference.
Except as otherwise expressly provided herein, none of Company’s remedies set forth in these General Terms is intended to be exclusive, and Company shall have all other remedies now or hereafter existing at law or in equity or by statute or otherwise, and the election of any one or more remedies shall not constitute a waiver of the right to pursue other available remedies.
To facilitate execution of any Service Order, the parties may execute and exchange the signature page by such electronic signatures, such as DocuSign or similar electronic signing software, all of which shall be deemed to be originals and effective as manual delivery.