1. Definitions
Wherever used in this Agreement or a statement of work (“SOW”), as the case may be, the following words and terms shall have the meanings set out below:
“Client” means the Party receiving the Services;
“Client Site(s)” means the location(s) at which Systems are located;
“Component(s)” means the Client’s hardware, equipment and information technology components which are covered by the Services;
“Client Data” includes all information (including personal information), material and records whether in written, oral, magnetic, electronic, optical or other tangible or intangible forms made accessible to or otherwise disclosed or provided by the Client to HD;
“Fees” means all base service fees, additional fees, charges and costs payable or reimbursable by Client to HD pursuant to this Agreement;
“HD” means Harrs Digital;
“Intellectual Property Rights” means patent, copyright, trademark and other similar proprietary rights to intellectual property under statute or common law;
“Party” means HD or Client, as the case may be, and “Parties” means HD and Client collectively;
“Services” means all services described in an agreement or SOW;
“HD Materials” means all software, hardware, appliances, methodologies, code, improvements, designs, templates, manuals, tools, policies, records, work papers, knowledge, data, know-how, ideas, interfaces, utilities, architectures, concepts, techniques, works of authorship or other intellectual property, written or otherwise, that is: (i) pre-existing property of HD; (ii) developed at any time by HD independently of this Agreement or the Services; or (iii) developed by HD alone or jointly with Client, whether independently of this Agreement or in relation to this Agreement, that relates to the Services, including work papers and other materials developed by HD, which also includes any updates, modifications, improvements, and derivative works of the same whether or not created or developed during the course of performance of the Services; and
“System(s)” means the Client’s systems and facilities including the Components and all associated software to maintain and operate such Systems, as set out in the SOW.
2. Term and Termination
a. This Agreement shall be in effect for the term set forth in the agreement or SOW (the “Term”). Client acknowledges that the pricing HD is able to offer is based on Client’s commitment to the Term. Accordingly, unless otherwise set forth in the SOW or as outlined in section (b) below, neither Party shall have the right to terminate this Agreement or the SOW prior to the end of the Term.
b. Either Party may terminate this Agreement with 60 days written notice. During the 60-day transition period HD will complete any work in progress and deliver all completed deliverables including documentation of processes, workflows and configurations. The Client will pay only for services used during the 60-day notice period and until the sites are moved elsewhere. If managed hosting services are retained, the hosting fee will be billed until the website is completely removed from HD servers, even if it is after the 60-day transition period. Services billed during the transition period will be due 30 calendar days from the end of the transition period. Both Parties will cooperate to ensure a smooth transition of services, data and assets.
c. Client agrees that notwithstanding any termination of the SOW or Agreement, no refunds on pre-paid Services shall be provided. Where applicable, Client agrees to pay HD i) for the Services up to and including the effective date of termination, including any pre-paid services purchased by HD for the delivery of the Services; or ii) the remaining fees committed to in the SOW.
3. Services
3.1 Statement of Work
a. The content and scope of the Services, the Fees payable by Client, and additional terms and conditions that may be necessary, if any, will be as set out in the SOW.
b. Changes, modifications or amendments to a SOW shall be agreed upon in writing by the Parties. The Parties agree that this Agreement and the applicable SOW(s) shall govern and supersede any terms and conditions stated on any purchase order submitted by Client. This Agreement shall take precedence in any conflict or inconsistency between this Agreement and a SOW (except to the extent that a specific term of the SOW expressly amends a term of this Agreement).
3.2 Security and Data Protection
HD agrees to take the appropriate measures to prevent any malicious attempts to gain access to the Client’s website to the best of their ability. If unauthorized changes are found to have been made to the HTTP headers or content in pages, HD will notify the Client immediately and revert any changes that have been made. All pages on the site will be monitored regularly. HD does not possess, store, process or transmit payment processing data on behalf of Client or their customers. HD acknowledges that they are responsible to the extent that HD could impact the security of Client’s Cardholder Data Environment.
Both Parties agree to comply with all applicable data protection laws and regulations, including but not limited to the General Data Protection Regulation (GDPR) where applicable. Each Party shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including as appropriate; (a) the pseudonymization and encryption of personal data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing. The Parties shall promptly notify each other of any data breaches and cooperate in good faith to address any data protection issues.
3.3 Service Limitations/Exclusions
Anything not specifically listed as in scope is considered out of scope and will require a signed change request form. Scope change requests will follow an established process involving identifying and documenting the request, assessing, and approving the request before planning, design, development, and implementation of the change can take place.
a. Changes in effort or scope may also arise at the systems level, for instance, to work around previously unidentified systems limitations or previously uncommunicated changes made during the project.
b. All change requests require approval by the client. Approval may include additional client cost and scheduling extension considerations where changes will present an increase to the established project effort and timeline estimates.
c. Any changes to the flows after the production deployment will be considered as Change Requests and will follow the same change control procedures.
3.4 Support & Response Expectations
To provide clear expectations, Harris Digital will operate under the following general guidelines. For critical issues or site down there is 24/7 automated monitoring for uptime and immediate alerting and triage with active work during business hours until stability is restored. For non-critical bugs or issues we provide same business-day initial response during business hours (usually within a few hours). Prioritizations is based on the impact to the clients revenue and operations. NOTE: These response expectations are supported by the Managed Platform Services outlined in the SOW. Where needed, additional or custom SLAs can be discussed and scoped separately.
3.5 Incident Resolution & Root Cause Protocol
In the event of a service interruption or critical failure (“Downtime”), HD’s priority is immediate service restoration. Billing for the remediation effort is determined by the Root Cause Analysis (RCA) conducted after the site is stable.
a. HD Responsibility (Non-Billable): HD will diagnose and resolve the following issues at no cost to the Client, regardless of the time or day:
- Server infrastructure misconfiguration or failure managed by HD.
- Issues caused by code deployments, patches, or updates performed by HD.
- SSL certificate expiration (if managed by HD).
- Security breaches caused by a failure in HD’s managed firewall or server hardening.
b. Client Responsibility (Billable): Issues identified as “Client-Induced” will be billed at the applicable Emergency Rate ($225/hr) if resolved after-hours, or Standard Rate during business hours. Client-Induced issues include, but are not limited to:
- Errors caused by changes made by Client staff in the HD managed digital infrastructure (e.g., breaking the layout, deleting data, installing unverified plugins).
- Issues caused by third-party integrations or credentials shared by the Client without HD’s involvement.
- Traffic spikes resulting from unannounced marketing events requiring emergency server scaling, and the remediation of any resulting downtime.
- Malicious attacks (DDoS) targeting the Client specifically (unless DDoS protection is explicitly included in the retainer).
c. Investigation Phase: If the cause of Downtime is unclear at the time of the incident, HD will proceed with the repair immediately. If the subsequent Root Cause Analysis determines the issue was Client-Induced, the time spent on diagnosis and repair will be billed retroactively.
3.6 Holiday and Blackout Schedule
a. Standard Holidays (No Service). Harris Digital is closed and no services will be performed on the following holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Eve, Christmas Day, and New Year’s Eve.
b. On Call Days (Urgent Support Only). On the following dates, only urgent on-call support is available: Martin Luther King Jr. Day, Presidents’ Day, Juneteenth, Black Friday, and December 26 through January 2nd.
c. Year-End Operating Schedule. From December 15 through December 23, Harris Digital does not initiate new projects or tasks. Standard communications and work on active projects continue. New requests submitted during this period will be queued and initiated after January 2.
Schedule Modifications. Harris Digital may modify the holiday and blackout schedule at its discretion.
4. Fees; Payment; Taxes; Marketing Policies
4.1 Client shall pay HD the Fees set out in the SOW. Client shall pay invoiced amounts within thirty (30) days of the invoice date. Client shall also be responsible for any taxes related to the Agreement, other than taxes imposed on HD’s income or arising from the employment relationship between HD and its personnel. Changes to Services, if any, will be invoiced at the time of purchase.
4.2 Managed Platform Service fee as outlined in the SOW agreement is billed one month in advance for the upcoming month by the 5th of the month. The first bill will contain two months of Service fees. Managed Platform Service fees will apply until all site data is removed from HD servers. No refunds or discounts will be applied for Managed Platform Services hosting unless specifically agreed upon by HD. In the event Managed Platform Services are terminated prior to the expiration of the 12-month agreement term, the total contract amount for the full 12-month period shall become immediately due and payable.
4.3 Client will reimburse HD for all costs (including, reasonable attorney’s fees and court costs) associated with collecting delinquent or dishonored payments that are past due. Overdue invoices shall be subject to an interest rate of 1.5% per month, calculated monthly, not in advance, from the date payment was due until the date payment is made; without prejudice to any other rights, remedies or recourses which HD may have under this Agreement, at law or in equity. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance.
4.4 Marketing services are billed one month in advanced as a flat rate as outlined in the SOW. Marketing strategies, campaigns, and adjustments will be executed as specifically requested and approved by the Client. Any changes implemented at the Client’s request will remain in effect until the Client explicitly instructs HD to modify or revert those changes. HD shall not be held liable for any consequences resulting from the continued implementation of a previously requested change if no subsequent directive to alter or reverse the change is provided by the Client in writing. It is the Client’s responsibility to review all deliverables, strategies, and campaigns and to communicate any desired changes or corrections promptly and explicitly.
4.5 Accepted forms of payment include:
a. ACH Transfer
b. Check (payable to Harris Digital)
c. Credit Card (Visa, Mastercard, American Express or Discover)
NOTE: Payments made via credit card will incur a 3% convenience fee which will be added to the total invoice amount. Late payments may be subject to additional fees per discretion of HD. If a check payment is returned, a returned check fee of $25.00 will be applied.
5. Client Obligations
5.1 Client shall, and shall ensure that its representatives (as defined below) will:
a. Co-operate in good faith with and provide reasonable assistance and information to HD as may be necessary to facilitate the provision of the Services in accordance with this Agreement and the SOW;
b. Provide, on a timely basis and at no cost to HD, access to and use of Client’s Site(s) and equipment, storage, workspace and communication facilities as may be reasonably required to perform the Services or inventory audit under the Services;
c. Provide HD with security clearances, badges and access codes necessary to perform the Services, including necessary access to the Client’s Site(s), where applicable;
d. Ensure that the Client Site(s) constitute a safe working environment in compliance with all applicable laws, regulations, codes, ordinances and generally accepted industry safety standards;
e. Provide all available supporting documentation regarding operational errors, error reports and console logs in respect of the Services;
f. Perform services of a housekeeping nature as may be reasonably requested by HD to ensure that the Component(s) and the System(s) are accessible to HD and to maintain an operating environment suggested by the manufacturer of the Component(s);
g. Perform or cause to be performed any repairs or adjustments to the System(s) or Component(s) which HD reasonably determines to be necessary in order for the System(s) and or Component(s) to be in proper operating condition;
h. Complete regular backups of all existing data, software and programs on all Systems prior to and during the delivery of the Services; and
i. Promptly notify HD of any problem of which it becomes aware, and co-operate with and provide all such reasonable assistance to HD, as HD may request, in resolving any malfunction, error, deficiency, failure, delay or other problem with the Services.
j. Request and approve marketing strategies, campaigns, and adjustments. Any changes implemented at the Client’s request will remain in effect until the Client explicitly instructs HD to modify or revert those changes. HD shall not be held liable for any consequences resulting from the continued implementation of a previously requested change if no subsequent directive to alter or reverse the change is provided by the Client in writing. It is the Client’s responsibility to review all deliverables, strategies, and campaigns and to communicate any desired changes or corrections promptly and explicitly.
5.2 Effect of a Failure or Delay
The Client understands that HD’s performance is dependent on the Client’s timely and effective satisfaction of the Client obligations set forth above and under the SOW, and timely decisions and approvals by the Client. In the event of any failure or delay in performance by the Client of a responsibility or obligation to be performed by it under this Agreement or a SOW, including delays in providing information, access, approvals or assistance, HD will not be responsible for any resulting delay or failure in providing the Services. Client will pay HD for any additional work required to be performed or costs incurred by HD as a result such failures or delays.
5.3 Client’s Systems
The Client warrants that it has all necessary rights to the Client’s Components, Systems and other technologies required for HD to perform the Services.
6. Limited Warranty on Services
a. HD shall provide the Services in a good and workmanlike manner and in accordance with generally accepted industry standards. HD does not warrant its services or deliverables will be entirely free from error or defect or that use of the Component(s) and System(s) covered will be uninterrupted or error free.
b. EXCEPT FOR THE EXPRESS WARRANTY SET OUT ABOVE, HD MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
7. Intellectual Property Rights
a. Client owns all the Client Data, including all Intellectual Property Rights therein. HD shall not remove Client Data from its existing physical or virtual location and shall not copy, transmit or destroy Client Data, without the express consent of the Client.
b. Client acknowledges and agrees that all HD Materials, other than the software, parts and equipment required to replace faulty software or parts in Client’s systems, are the property of HD, will be for Client’s internal use only, and must be returned to HD upon termination of this Agreement unless provided to Client under a license or assignment that is intended to survive this Agreement.
c. Additional items needed, if any, (i.e., stock photography, plug-ins/extensions, subscriptions), will be owned by the client. The Client may purchase or HD may purchase and bill back at cost to the Client.
d. The Intellectual Property Rights in all intellectual property specifically created for Client shall belong to HD until HD receives full payment from Client, at which point the ownership of the intellectual property will be transferred to the Client.
e. In the event that both Parties determine the need to use third-party modules/providers, both parties shall investigate and agree upon such third-party modules/providers before installing the module onto the website/servers. HD disclaims all representations and warranties regarding any third-party module/provider and the ability to integrate such third-party module/provider into the Services. Client shall be solely responsible for obtaining the necessary Intellectual Property Rights to use such third-party module/provider.
f. Each Party acknowledges that it shall not acquire any rights in or to the Intellectual Property Rights belonging to the other Party.
g. Client acknowledges that HD provides similar services to other Clients and that nothing in this Agreement shall be construed to prevent HD from carrying on such business or from acquiring, licensing, marketing, distributing, developing for itself or others or having others develop for it similar products, services or materials performing the same or similar functions as the Services contemplated by this Agreement or any SOW. For greater certainty and without limitation HD is free to use without restriction its general knowledge, skills and experience and any ideas, concepts, know-how and techniques learned in the course of providing the Services.
8. Insurance Indemnification
8.1 Insurance
Upon entering into a contractual agreement with HD, the client is automatically covered as an additional insured under HD Liability Insurance. Coverage ceases upon expiration of contract or agreement termination unless contract is renewed. If requested, HD will issue a Certificate of Insurance to the Client each renewal period (May to May) upon policy renewal.
8.2 Indemnification
Client will indemnify, defend, and hold harmless HD and its affiliates officers, directors, employees, agents, successors and assigns from and against all third party actions, proceedings, demands, claims, liabilities, losses, damages, costs, expenses (including without limitation reasonable legal fees) resulting from or arising in relation to (i) Client’s breach of this Agreement or SOW; (ii) Client’s gross negligence or willful misconduct; and (iii) Client’s failure to comply with any applicable law, rule, regulation, or order of any governmental or quasi-governmental body.
9. Confidentiality and Non-Solicitation
9.1 Confidentiality
To the extent that confidential and proprietary information of a Party (“Confidential Information”) is exchanged and received in connection with the Services or this Agreement, the receiving Party agrees to maintain the confidential nature of the Confidential Information of the disclosing Party in its possession by taking reasonable steps to protect such Confidential Information from unauthorized use, access and disclosure; such steps shall be at least equal to those taken by the receiving Party to protect its own Confidential Information. The receiving Party may disclose the Confidential Information of the disclosing Party to its or its Affiliates’ employees or independent contractors provided that such employee or independent contractor has a need to know and is required to maintain the confidentiality of such information on terms no less stringent than those contained in this Section. In addition to the foregoing, HD may disclose the Confidential Information of the Client to its third party vendors or subcontractors provided that such third party vendor or subcontractor: (i) is providing services in connection with a SOW; (ii) has a need to know; and (iii) is required to maintain the confidentiality of such information on terms no less stringent than those contained in this Section. Confidential Information includes, but is not limited to, all HD Materials and the provisions of this Agreement. Confidential Information does not include: (a) information that was publicly available at the time of disclosure or that subsequently becomes publicly available other than by a breach of this provision by the receiving Party; (b) information previously known by or developed by the receiving Party independent of the Confidential Information of the disclosing Party; or (c) information that the receiving Party rightfully obtains without restrictions on use and disclosure. The receiving Party may disclose Confidential Information of the disclosing Party in accordance with a judicial, government or agency order, provided that the receiving Party required to make such disclosure shall, to the extent permitted by law, provide the disclosing Party with reasonable prior notice of such disclosure and shall comply with any applicable protective order or equivalent that applies to such disclosure. The receiving Party shall be liable to the disclosing Party for any breach of the receiving Party’s obligations in this Section committed by a person to whom the receiving Party is permitted to disclose the Confidential Information of the disclosing Party pursuant to this Section.
9.2 Non-Solicitation
Neither Party shall solicit for employment, nor directly or indirectly induce the termination of employment, of any of the other Party’s personnel during the term of such personnel’s assignment to or work under a SOW and for the period of twelve months following termination of such assignment. The foregoing restrictions shall not apply if one Party’s personnel seeks employment with the other Party as a result of a response to a general solicitation (such as in a newspaper, trade journal, online posting or other advertisement or job fair).
10. Limitation of Liability
a. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY, INCLUDING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NUMBER OF EVENTS OR OCCURRENCES GIVING RISE TO LIABILITY, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES SET OUT IN THE SOW PAYABLE FOR TWELVE (12) MONTHS OF SERVICES.
b. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES, DAMAGE OR EXPENSES OF ANY KIND, OR FOR BUSINESS INTERRUPTION, LOST OR CORRUPTED DATA, LOST REVENUE, LOST PROFITS, LOST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE, OR EVEN IF SAME WERE REASONABLY FORESEEABLE.
c. TO THE EXTENT APPLICABLE BY LAW, THE ABOVE LIMITATIONS SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR CLAIM, INCLUDING BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY, AND SHALL SURVIVE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND HD’S COMPENSATION UNDER THIS AGREEMENT REFLECTS SUCH ALLOCATIONS.
11. Force Majeure
Except for a party’s obligation to pay the other party any amount owed in accordance with this Agreement, neither party will be deemed to be in default hereunder or liable for a failure or delay in performance that is caused, in whole or in part, by circumstances including, acts of God, acts, omissions or delays of carriers, embargo, explosion, fire, flood, order of civil or military authority, disease, strike, labor disputes, lockout, war, product unavailability, malfunction or failure of third party systems or services (including telecommunications services), electrical or environmental system malfunction, worms, viruses and similar issues that render the Services inoperable or otherwise incapable of being used or that restrict or diminish their use, or any other causes beyond its control where such event renders impossible or delays a party’s performance (each, a “Force Majeure Event”). In such an event, that impacted party will promptly notify the other in writing and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Delivery and performance dates will be equitably extended to the extent of any such delays.
12. Miscellaneous
12.1 Assignment and Binding Effect
Neither Party may assign its interest in this Agreement or the SOW without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided however that HD may, without the consent of the Client, assign this Agreement to any person or entity directly or indirectly controlling, controlled by, or under common control with HD. This Agreement and SOW shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
12.2 Governing Law and Dispute Resolution
This Agreement and SOW shall be governed by the laws of the State of Connecticut, without regard to its conflict of laws rules. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, the parties shall first attempt to resolve such dispute through good faith negotiations within 90 days of written notice. If the parties cannot reach a resolution through negotiation, they shall proceed to mediation conducted by a neutral mediator affiliated with the American Arbitration Association under its Commercial Arbitration Rules. The costs of mediation shall be shared equally by the parties, unless otherwise agreed upon. All information exchanged during the dispute resolution process shall be treated as confidential, except as required by law. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
12.3 Severability
In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.
12.4 Survival of Terms
Sections 4, 6, 7, 8, 9, 10 and 12 shall survive the termination or expiry of this Agreement.
12.5 Suspension of Service
Notwithstanding any other term or condition in this Agreement, HD reserves the right to suspend any and all Services should the Client fail to pay within the prescribed period any undisputed amount invoiced hereunder. In the event an invoice is disputed by the Client; that invoice shall not be used as a basis for any suspension of Service until such dispute has been settled. Any suspension of service for non-payment of any invoice shall not in any way affect the total amount owed by the Client under the terms of this Agreement. No credit shall be allowed for any suspension of Service resulting from the late payment or non-payment of any legitimate invoiced amount.
12.6 Independent Parties
The Parties shall act as independent contractors. Except as otherwise expressly permitted hereunder, neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, or to represent the other Party as agent, partner or joint venture.
12.7 Notices
Any notice required to be given to HD shall be in writing and shall be personally delivered or sent by courier or email as follows:
Address: Harrs Digital, 172 Amity Rd, Woodbridge, CT 06525
Phone: 203-535-1631, Email: accounting@harrisdigital.io
In the case of Client, notices shall be sent to the address noted in the SOW, or if no address is indicated, the latest address which HD may have on file, or to such other address as the Client may by written notice indicate to HD.
Any such notice given by either Party in accordance with the foregoing will be deemed to have been received by the other Party, on the date of delivery or transmission.
12.8 Entire Agreement
This Agreement and the fully – executed SOW collectively represent the entire agreement between the Parties with respect to the matters provided for in the SOW, and supersede all prior discussions, negotiations and agreements between the Parties whether written or oral. No amendment or variation to this Agreement shall be effective unless in writing and signed by both Parties. This Agreement is subject to change without prior notice; however, the version of this Agreement posted on the HD website at the time that Client entered into the SOW will govern, unless otherwise agreed in writing by the Parties.