General Terms and Conditions

All Services, as defined below, and all Products, as defined below, supplied or provided by or through D3 Technical Services, LLC, a Montana limited liability company (“D3”) to you, the undersigned, shall be supplied and provided subject to the terms and conditions of these General Terms and Conditions (these “General Terms”).

While all Services and Products supplied or provided by D3 are subject to the terms and conditions of these General Terms, some Services and Products may also be supplied and provided by D3 to you subject to the terms and conditions of certain addendums, service tickets, work orders, emails, text messages, or similar communications, oral, in-person or telephone conversations, or similar communications via any type of media from time to time (individually a “Work Scope Communication” and collectively the “Work Scope Communications,” with these General Terms and the Work Scope Communications being collectively referred to as the “Agreement”).

While these General Terms may be supplemented by one or more Work Scope Communications, any conflict between any Work Scope Communication(s) shall be read in favor of these General Terms controlling. Further, the terms of these General Terms cannot be limited or modified by any Work Scope Communication(s), and the terms of these General Terms may only be waived, modified, or amended on behalf of D3 via a formal writing, signed by Dudley Moorhead as manager of D3, and specifically labeled as a waiver, modification, or amendment of these General Terms.

THIS IS A LEGALLY BINDING AGREEMENT.

THESE GENERAL TERMS ARE ONGOING AND GOVERN ALL SERVICES AND PRODUCTS SUPPLIED OR PROVIDED BY OR THROUGH D3.

READ ALL OF THE AGREEMENT BEFORE SIGNING OR ACCEPTING ANY SERVICES OR PRODUCTS.

SEEK YOUR OWN LEGAL OR OTHER COUNSEL PRIOR TO AGREEING IF YOU HAVE CONCERNS.

HOW YOU MAY AGREE AND BE LEGALLY BOUND TO THE TERMS:

While D3 may request that you sign, e-sign, or send an email evidencing that you agree to these General Terms or one or more Work Scope Communications, by accepting any Services or Products you shall be deemed to have irrevocably, unconditionally, and absolutely accepted this offer and agreed to each and every term and condition stated in these General Terms and any Work Scope Communications under which you receive any Services or Products.

If you e-sign, send any email stating that you agree, or accept any Services or Products, it shall have the same legal impact as if you physically and traditionally signed these General Terms and the applicable Work Scope Communications.

The offer by D3 to supply or provide Services or a Product is made only and specifically on all of the terms and conditions stated in the Agreement and may not be accepted: (i) under protest; (ii) only in part, such as agreeing to some but not all of the terms and conditions of the Agreement; (iii) conditionally; (iv) not absolutely; (v) in any manner that is revocable; or (vi) with rights reserved.

Without limiting the binding nature of the Agreement, each time you make a payment to D3 or accept any Services or Product you are reaffirming your agreement to the terms of the Agreement.

If you do not want to agree to these terms or if you want to propose alternative terms do not sign, e-sign, send any email stating that you agree, or accept any Services or Products. Once you sign, e-sign, send any email stating that you agree, or accept any Services or Products, you are legally bound to the terms of the Agreement.

If you have questions or to propose alternative terms, please email: info@d3technical.com

WHAT SERVICES AND PRODUCTS IS D3 SUPPLYING OR PROVIDING:

Subject to the terms of the Agreement, D3 shall generally supply or provide the services (the “Services”) and hardware, software, and products (the “Products”) as specified in any relevant Work Scope Communications. At times, as D3 deems reasonable or appropriate, D3 may also from time to time provide other Services and Products at D3’s then current pricing or gratis, as D3 may reasonably determine. All Services and Products provided or supplied are subject to the terms of these General Terms.

D3 may suspend its performance as relating to all or any aspect of the Agreement, without liability, during any period of time that you are not in compliance with the terms of the Agreement, including but not limited to non-payment. Access to third party software or services may be disabled or suspended during any period of time that you are not in compliance with the terms of the Agreement, which may result in permanent data loss or access to critical business functions, inability to complete backups of systems or software, loss of access to your systems, softwares, and functions, all of which shall be without any liability to D3. Thereafter, while any such non-compliance is ongoing, upon notice to you, D3 may immediately terminate any or all Work Scope Communications and D3’s obligations thereunder without liability and without reducing your obligation to pay for Services or Products supplied or provided through the termination date.

Services or Products supplied or provided that are not specified in any Work Scope Communications shall be subject to the terms of these General Terms and, at D3’s discretion, billed at D3’s then current pricing or hourly rate for such Services or Products.

WHAT TERMS GOVERN MY RELATIONSHIP WITH D3:

The terms of these General Terms and any relevant Work Scope Communications govern your relationship with D3.

The pricing of Services and Products may change from time to time, and such changes will be binding upon the earliest of: (i) the next occurrence where you are suppled or provided any Product or Services; (ii) 30 days after such change is posted to https://www.d3technicalservices.com; (iii) 15 days after you are provided notice of the change; or (iv) when you actually know of such change.

To be clear, these General Terms shall continue and govern all Services and Products supplied or provided by or through D3. Also, to further clarify, the terms of these General Terms shall apply to all Services and Products supplied or provided by or through D3 to you even if there is no relevant Work Scope Communication and even if provided as a courtesy or gratis.

THESE GENERAL TERMS LIMIT YOUR LEGAL RIGHTS AND D3’s LIABILITY AND DAMAGES:

These General Terms limit your legal rights and D3’s liability and damages, but without such provisions D3 would not undertake providing or supplying the Services or Products. By agreeing to these General Terms you are also agreeing that the terms are fair, reasonable, serve a legitimate business purpose for D3, and are a material inducement for D3 to enter the Agreement.

In no event will any party be liable for any type of consequential, incidental, indirect, special, economic or punitive damages. Without limiting the foregoing, including those damages incurred or suffered as relating or arising to or from the Agreement, the Services, or Products, whether under theory of contract, tort, product liability, strict liability, or otherwise, and including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, loss of rights, loss of data, or loss of use of services or equipment, even if one party has advised the other party of the possibility of such loss or damage;
D3 shall only be liable and responsible for damages and liability that arise directly from its own grossly negligent or recklessly injurious conduct. Without limiting the foregoing, and to be clear, D3 shall not be liable or responsible for damages or liability arising indirectly or from its own negligence or error. This shall include any errors or damages arising from using software or equipment provided or procured by or through D3;
For any breach of the Agreement by D3, at the discretion of D3, D3 may elect, as your sole remedy, to undertake the steps so as to make any of Services or the Product compliant with the terms of the Agreement or to cure such alleged breach, as opposed to, and in lieu of paying monetary damages or otherwise being liable in any way;
D3 makes no warranties and hereby disclaims all warranties of any type, including express and implied warranties, including a warranty as to merchantability and fitness for a particular purpose; provided, without limiting the foregoing, D3 shall pass through to you, to the extent legally allowed, any warranties offed for Services or Products by parties unrelated to D3.
Subject to the other limitations and terms of these General Terms, each party hereby agrees to indemnify, defend and hold the other party and the other party’s affiliates, members, managers, directors, officers, shareholders, employees, representatives, agents, attorneys, successors and assigns harmless from and against any and all claims, liabilities, obligations, judgments, causes of actions, costs and expenses (including reasonable attorneys’ fees) arising out of or relate its own breach of the Agreement, any attempt to invalidate any provision or part of the Agreement, and the actual invalidation or any part or provision of the Agreement. Further, you also hereby agree to indemnify, defend and hold D3 and its affiliates, members, managers, directors, officers, shareholders, employees, representatives, agents, attorneys, successors and assigns harmless from and against any and all claims, liabilities, obligations, judgments, causes of actions, costs and expenses (including reasonable attorneys’ fees) from any non-party to the Agreement that arise out of or relate to the Agreement or any Services or Products supplied or provide by or through D3;
Excluding only the indemnification, defense, and hold harmless obligations and each party’s own grossly negligent or recklessly injurious conduct, but subject to the limitations and terms of these General Terms, each party’s maximum aggregate total liability for all claims for acts, omissions, or other items related to or in connection with the Agreement, whether under contract, tort, or any other legal theory, shall not exceed the amount actually paid or owed by you to D3 for Services and Products for the most recent invoice from D3 to you, plus any unpaid amounts you owe D3 for Services or Products.

WHAT D3 NEVER SUPPLIES OR PROVIDES:

There are certain items or things that D3 will never supply or provide or be responsible for. The following is a non-exhaustive list of items or things that D3 will never supply or provide or be responsible for. You agree that D3 is never supply or be responsible for the following:

Any specific result or outcome, including any particular status or level of satisfaction. D3 does not ever guarantee a specific outcome or result. Also, payment for Services and Products is not conditioned upon any specific result or outcome. All hours worked are billable regardless of the outcome of said work, and all Products supplied are billable at the agreed rate;
The conduct, action, or inaction of any third party or person. D3 is only liable and responsible, subject to the terms of these General Terms, for D3’s conduct, action, or inaction;
Unless caused directly by D3’s grossly negligent or recklessly injurious conduct, any loss of data, delays, corruption of data, nondeliveries, misdeliveries, or service interruptions. Use of the Services or Products is at your sole risk, and you are responsible for the selection and suitability of Services and Products;
Unless caused directly by D3’s grossly negligent or recklessly injurious conduct, any unauthorized access to D3’s or your transmission facilities, premises, or equipment, nor for unauthorized access to, alteration, theft, or destruction of your data, programs, procedures, or information, whether by accident, fraud, or any other method;
Unless caused directly by D3’s grossly negligent or recklessly injurious conduct, any damage or breach relating to the use of or connection to the internet;
Unless caused directly by D3’s grossly negligent or recklessly injurious conduct, the security of your system, data, or otherwise. D3 does not offer security consulting. D3 may, subject to the terms of the Agreement, agree to manage certain IT services for you at your direction. However, in all instances you must be, or provide the authority and guidance on laws, regulations, and security protocols relating to, needed, or desired for your business. This includes, but is not limited to e-911 compliance or issues, HIPAA, PCI-DSS, or URAC compliance issues. Further, to be clear, while D3 may offer guidance or Consult on the security of your system, data, or otherwise, D3 is not certified in any way relating to the security of your system, data, or otherwise – you are responsible and need to make sure you informed, or hire someone that is, since you are responsible for security and compliance matters;
Unless caused directly by D3’s grossly negligent or recklessly injurious conduct, any administrative access. You retain administrative access to all of your systems and are your own authority on all IT aspects. D3 is not responsible for password management, systems upkeep, encryption, administrative controls, and the like;
Any delay or failure in performance of any part of the Agreement to the extent that such delay is caused by events or circumstances beyond D3’s reasonable control;
You agree that D3 will have unattended administrative access to all services and data stored on your systems. D3 may also establish remote back-end access to network firewalls and other devices as needed for support operations;
D3 is not responsible for security, breach of third party agreements, violation of laws or regulations relating to remote back-end access;
Any third-party products and services. D3 utilizes third-party products and services. D3 is not responsible for technical, security, or other issues with any of these products or services;
Any hardware in D3’s possession. Further, any hardware in D3’s possession will be considered abandoned and surrendered to D3 if you do not retrieve such hardware within 90 days of D3 giving you notice to retrieve such hardware. Any data on abandoned and surrendered hardware may be deleted and the hardware will thereafter belong to D3;
Unless caused directly by D3’s grossly negligent or recklessly injurious conduct, any damage to hardware. Hardware may be damaged or destroyed during repair or while in D3’s possession, and data and software stored on such hardware may be damaged or destroyed. D3 is not responsible for any such damage or lost data or software;
For any damages or liabilities relating to any third-party, including your clients, customers, or employees or any government or quasi-governmental agency. D3’s responsibility is only to you, and the terms of D3’s responsibility to you is governed by the Agreement.

While D3 may from time to time provide guidance, suggestions, Services, Products, or tools that relate to, involve, or contradict the foregoing terms of this section, it shall not limit the foregoing or any other term of these General Terms, and you may elect at your discretion to accept or implement such guidance, suggestions, Services, Products, or tools.

WHAT DO I NEED TO SUPPLY OR PROVIDE:

You will need to provide D3 with, and maintain while receiving Products or Services by or through D3: a real, and active telephone number where you can be reach; a valid mailing address; name of contact person; and valid email address; and such other items and reasonably requested by D3. You will also need to supply and provide any and all materials and items reasonably requested by D3 or as required by the Agreement.

Failure to supply or provide all of the foregoing may prevent or delay D3 from providing Services or Products.

HOW MUCH AND WHEN DO I PAY D3:

Services and Products shall be billed at the rates and in the amounts as specified in any applicable Work Scope Communications, subject to the terms of these General Terms. Any Services or Products supplied or provided that are not specified in any Work Scope Communications shall be billed at D3’s then hourly rates and subject to the terms of these General Terms.

Outstanding balances are due in full upon receipt. If payment is not received by D3 within 30 days, the payment shall be considered overdue, and D3 may suspend or terminate its performance as relating to the Agreement, without liability. Any such termination or suspension shall not reduce or remove any amounts you already owe D3. All past due accounts submitted for collection will be subject to collection fees and attorney’s fees.

TERMINATING THE AGREEMENT:

You may terminate the Agreement by providing D3 with 30 days written notice. D3 may terminate the Agreement by providing you with 30 days written notice. Regardless of who terminates, you will still owe D3 for all Services and Products supplied or provided through the date of termination, and the terms of these General Terms shall continue and survive such termination for as long as legally possible.

CONFIDENTIAL INFORMATION:

All information relating to either party that is known by the other party to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by that other party and will not be disclosed or used except to the extent that such disclosure or use is reasonably necessary to perform duties and obligations under the Agreement.

A party’s obligation to maintain confidentiality will not apply with respect to information that is independently developed by the party, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.

MISCELLANEOUS PROVISIONS:

D3’s relationship with you under the Agreement is that of an independent contractor, and nothing in the Agreement will create or imply an agency, partnership, joint venture, or employment relationship.

Insurance and Maintenance Programs

At any time D3 is providing Services or Products to you, you shall maintain all appropriate insurances and coverages that are desirable or necessary, including for liability, business interruption, and damages to your property and any Products provided by D3, and shall include the insurer’s waiver of subrogation. This shall include insurances and coverages for all reasonably anticipated and actual uses and users of the Services and Products. At any time D3 is providing Services or Products to you, you shall establish and adhere to reasonable maintenance programs for all critical systems. D3 is not liable for any maintenance related issues or any impacts on Services or Products from failure to properly maintain any critical systems.

Assignment

Neither party will assign the Agreement, in whole or in part, without the prior written consent of the other party. Subject to the foregoing sentence, the Agreement is binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.

Choice of Law; Jurisdiction; Venue

The Agreement is made under and will be governed by and construed in accordance with the laws of the State of Montana. All disputes arising out of or relating to the Agreement shall be submitted to the exclusive jurisdiction of the state and federal courts in Missoula County, Montana. Each party irrevocably consents to such personal jurisdiction and waives all objections thereto.

Severability

If any term of the Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of the Agreement will remain in full force and effect.

No Waiver

The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant.

Notice

All notices, demands, requests or other communications required or permitted under the Agreement shall be deemed given on the earliest of the following: 1) when delivered personally or the other party has actual knowledge of such notice, demand, request, or other communication, 2) when sent by facsimile or email when addressed correctly, or 3) upon receipt of delivery of postal mail.

Entire Agreement

These General Terms together with each relevant Work Scope Communications constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Without reducing any obligations you may have under any current agreements with D3 for Services or Products, these General Terms shall apply to all Services or Products provided by D3. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.

TO ACCEPT THIS OFFER

While D3 may request that you sign, e-sign, or send an email evidencing that you agree to these General Terms or certain Work Scope Communications, by accepting any Services or Products you shall be deemed to have irrevocably, unconditionally, and absolutely accepted this offer and agreed to each and every term and condition stated in the Agreement.

If you e-sign, send any email stating that you agree, or accept any Services or Products, it shall have the same legal impact as if you physically signed the Agreement in ink with a pen.

This offer is made only and specifically on all of the terms and conditions stated in the Agreement and may not be accepted: under protest; only in part, such as agreeing to some but not all of the terms and conditions of this Agreement; conditionally; not absolutely; in any manner that is revocable, or; with rights reserved.

If you do not want to agree to these terms or if you want to propose alternative terms do not sign, e-sign, send any email stating that you agree, or accept any Services or Products. Once you sign, e-sign, send any email stating that you agree, or accept any Services or Products you are legally bound to the terms of the Agreement.

If you have questions or to propose alternative terms, please email: info@d3technical.com

D3 Technical Services, LLC,

A Montana limited liability company