Third-Party Software Addendum
IMPORTANT NOTICE: This is a STANDING WAIVER. Once executed by both Parties, it applies automatically and continuously to ALL Third-Party Software installed or deployed at any time during the Term — provided each installation has received written approval through Client’s Change Approval Board (CAB) process described in Section 4. The CAB is composed exclusively of Client’s own designated employees or authorized representatives; Provider Personnel are not CAB members and do not issue CAB Approvals. CAB Approval by a Client-designated Third-Party Software Change Approver is mandatory before Provider will perform any installation.
1. Parties
This Standing Waiver of Liability (“Waiver”) is entered into as of the date last signed below (“Effective Date”), by and between the Provider and Client as found on the previously executed Master Services Agreement (the “MSA”) by and between the Provider and Client.
Provider and Client are each referred to herein individually as a “Party” and collectively as the “Parties.”
Client accepts these Terms by signing the Waiver, using the services, or continuing to use the services after being notified of a change to these Terms.
2. RECITALS
WHEREAS, Provider furnishes information technology and managed services to Client pursuant to a Master Services Agreement or other governing contract (“MSA”);
WHEREAS, during the course of the service relationship, Client may from time-to-time request that Provider install or deploy Third-Party Software that Client selects or directs, which software may fall outside Provider’s standard managed services catalog or Approved Software List;
WHEREAS, Client has established, and is solely responsible for operating and maintaining, a Change Approval Board composed exclusively of Client’s own designated employees or authorized representatives, for the purpose of evaluating, documenting, and formally approving all Third-Party Software installation requests prior to execution; Provider Personnel are not members of, and do not participate in, the Change Approval Board;
WHEREAS, the Parties desire to establish a single, standing waiver that governs all CAB-approved requests, now and in the future;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
3. DEFINITIONS
As used in this Waiver, the following terms shall have the meanings set forth below. Capitalized terms not defined herein shall have the meanings ascribed to them in the MSA.
3.1 “Third-Party Software” means any software application, program, utility, script, plug-in, extension, firmware, operating system component, or cloud-based service that:
(a) has been specifically identified and selected by Client for installation on Client Systems;
(b) is not included within Provider’s standard managed services catalog or Approved Software List; and
(c) Client has requested Provider to install on Client Systems following CAB Approval in accordance with Section 4 of this Waiver.
Provider does not support, maintain, troubleshoot, update, or take any responsibility for Third-Party Software. Provider’s sole involvement with Third-Party Software is limited to performing the physical installation on Client Systems after receiving CAB Approval, as further described in Section 4. This Waiver applies automatically to each such approved request.
3.2 “Approved Software List” means the catalog of software applications, versions, and configurations that Provider has tested, vetted, and supports as part of its standard managed services offering, as updated by Provider from time to time upon written notice to Client.
3.3 “Change Approval Board (CAB)” means the internal governance body established, operated, and maintained exclusively by Client, comprised solely of Client’s designated employees or authorized representatives who have been named as Third-Party Software Change Approvers in the schedule attached to this Waiver. The Change Approval Board is a Client body and a Client responsibility. Provider Personnel are not members of the Change Approval Board, do not participate in its deliberations, and have no decision-making authority within it. The CAB is responsible for reviewing, evaluating, and issuing or denying approval for all Software Request Tickets submitted by Client for Third-Party Software installation, deployment, or configuration on Client Systems.
3.4 “CAB Approval” means the written authorization issued by a Third-Party Software Change Approver — acting as a member of Client’s Change Approval Board — through the Ticketing System, confirming that the Software Request Ticket has been reviewed and approved by Client’s CAB, and that Client authorizes Provider to proceed with the requested installation or deployment of Third-Party Software. CAB Approval is a Client decision and a Client act. Provider does not issue, control, or influence CAB Approvals.
3.5 “Client Systems” means all hardware, servers, workstations, mobile devices, virtual machines, cloud instances, networks, and related infrastructure owned, leased, or operated by or on behalf of Client, upon which any Third-Party Software is or may be installed or deployed.
3.6 “Covered Services” means the physical installation of Third-Party Software on Client Systems performed by Provider following receipt of CAB Approval, as the sole and exclusive service Provider provides with respect to Third-Party Software. Covered Services expressly exclude any support, maintenance, troubleshooting, updating, monitoring, configuration changes, or removal of Third-Party Software after installation is complete.
3.7 “Data Loss Event” means any unintended deletion, corruption, encryption, alteration, exfiltration, or inaccessibility of Client’s electronic data, files, databases, or records arising from or related to any Third-Party Software.
3.8 “Downtime” means any period during which: (a) Client Systems, or any portion thereof, are rendered inoperable, degraded, or inaccessible, in whole or in part; or (b) Provider’s managed services, or any component thereof, are disrupted, degraded, delayed, or rendered unavailable to Client or to any other client of Provider; in each case arising from or in connection with the installation or operation of any Third-Party Software on Client Systems.
3.9 “Effective Date” means the date on which the last Party executes this Waiver, as indicated in the signature block below.
3.10 “MSA” means the Master Services Agreement, Service Agreement, or other governing contract between Provider and Client, as amended from time to time.
3.11 “Provider Personnel” means Provider’s employees, contractors, subcontractors, agents, and authorized representatives who perform Covered Services.
3.12 “Security Incident” means any actual or reasonably suspected unauthorized access, breach, ransomware attack, malware infection, data exfiltration, or compromise of Client Systems that arises from or is materially contributed to by any Third-Party Software.
3.13 “Software Request Ticket” means the formal request record submitted by Client or on Client’s behalf within the Ticketing System to initiate Client’s CAB approval process for the installation of Third-Party Software on Client Systems. Each Software Request Ticket shall include, at minimum: the name and version of the requested software, the business justification, the target Client Systems, and the name and contact information of the requesting user.
3.14 “Term” means the period beginning on the Effective Date and continuing for so long as the MSA or any successor service agreement remains in effect between the Parties, unless earlier terminated in accordance with Section 9 of this Waiver.
3.15 “Third-Party Software Change Approver” means each individual designated by Client in the Designated Third-Party Software Change Approvers schedule attached to this Waiver (up to five individuals) who, collectively, constitute Client’s Change Approval Board. Each Third-Party Software Change Approver must be an employee or authorized representative of Client — not an employee, contractor, or representative of Provider. Provider Personnel may not serve as Third-Party Software Change Approvers. Each Third-Party Software Change Approver holds the authority and responsibility to independently review Software Request Tickets on behalf of Client, evaluate the associated risks and business justification, and issue or deny CAB Approval through the Ticketing System. Any one Third-Party Software Change Approver acting alone shall have full authority to issue a valid CAB Approval. Client shall designate all Third-Party Software Change Approvers in the schedule attached hereto and shall notify Provider promptly in writing of any additions, removals, or changes to such designations.
3.16 “Third-Party Vendor” means the developer, publisher, licensor, distributor, or reseller of any Third-Party Software, who is not a party to this Waiver.
3.17 “Ticketing System” means the web-based or cloud-hosted IT service management and help desk platform used by Provider and Client to submit, track, manage, and document Software Request Tickets and CAB Approvals, as designated by Provider from time to time upon written notice to Client.
4. CHANGE APPROVAL BOARD (CAB) PROCESS
No Third-Party Software shall be installed or deployed by Provider on Client Systems unless and until a Software Request Ticket has been submitted and received CAB Approval in accordance with this Section 4. Upon receipt of Client’s CAB Approval, Provider will execute the installation as directed. CAB Approval is a condition precedent to Provider’s obligation to perform any installation of Third-Party Software under this Waiver.
4.1 Submission of Software Request Ticket. Client shall initiate all requests for Third-Party Software installation by submitting a Software Request Ticket through the Ticketing System. Each Software Request Ticket must include: (i) the full name of the requested Third-Party Software; (ii) the download link to the Third-Party Software; (iii) the specific Client Systems by hostname ; and (iv) the business justification for the request. Any Third-Party Software Change Approver listed in the schedule attached to this Waiver may issue CAB Approval for the ticket.
4.2 CAB Deliberation and Third-Party Software Change Approver Authorization. Client’s Change Approval Board is solely responsible for making the decision to approve or deny any Software Request Ticket. The Third-Party Software Change Approver must provide express written CAB Approval within the Ticketing System before Provider will proceed with any installation. CAB Approval by the Third-Party Software Change Approver constitutes: (i) Client’s reaffirmation of all terms and conditions of this Standing Waiver with respect to the approved Third-Party Software; and (ii) Client’s direction and authorization for Provider to install or deploy the approved Third-Party Software on the specified Client Systems. No verbal, email-only, or out-of-system approval shall satisfy the CAB Approval requirement.
4.3 Provider’s Right to Decline. Provider reserves the right to deny any Software Request Ticket that it reasonably determines, in its sole discretion, poses an unacceptable security risk to Client Systems or Provider’s infrastructure, violates applicable law or regulation, or is otherwise outside the scope of services Provider is willing to support. Provider shall communicate any denial with a written explanation via the Ticketing System. A denial by Provider does not constitute a breach of the MSA or this Waiver.
4.4 No Installation Without CAB Approval. Provider shall not be obligated to, and shall not, install or deploy any Third-Party Software absent valid CAB Approval. Any installation of Third-Party Software performed by Client or a third party outside of this CAB process without Provider’s involvement or CAB Approval shall be solely Client’s responsibility and shall not alter or limit the scope of this Waiver. Provider shall bear no liability for software installed outside the CAB process.
4.5 Ticketing System as Record of Approval. The Ticketing System shall serve as the system of record for all Software Request Tickets and CAB Approvals. Provider shall retain all records of Software Request Tickets and CAB Approvals for a minimum of twelve (12) months following the applicable approval date. Such records shall be made available to Client upon written request. The Ticketing System record of CAB Approval shall be sufficient to establish that this Waiver applies to the corresponding Third-Party Software installation.
4.6 Change in Third-Party Software Change Approver. Client shall promptly notify Provider in writing of any change in its designated Third-Party Software Change Approver. Pending receipt of such notice, Provider shall be entitled to rely on CAB Approvals issued by the most recently designated Third-Party Software Change Approver of record. Client shall be responsible for any CAB Approvals issued by a former designee prior to Provider’s receipt of written notice of the change.
5. STANDING AUTHORIZATION & CONTINUOUS APPLICATION
5.1 Single Execution. This Waiver is intended to be executed once and to apply broadly and continuously. Client’s execution of this Waiver constitutes a standing authorization and acknowledgment covering all Third-Party Software that receives CAB Approval, whether approved before, on, or after the Effective Date, for the entire Term.
5.2 No Per-Request Waiver Required. The Parties expressly agree that no additional waiver or release shall be required each time Client submits a Software Request Ticket or the Third-Party Software Change Approver issues CAB Approval. Each CAB Approval shall itself constitute Client’s reaffirmation of the terms of this Waiver as to that specific Third-Party Software installation.
6. CLIENT ACKNOWLEDGMENTS & ASSUMPTION OF RISK
Client hereby acknowledges and agrees, on a standing and continuing basis for the entire Term, as follows:
6.1 Informed Decision. Client acknowledges, and by causing its Third-Party Software Change Approver to issue each CAB Approval reaffirms, that it has independently evaluated the Third-Party Software and understands that it may carry risks including but not limited to system instability, security vulnerabilities, data loss, regulatory non-compliance, and incompatibility with Client Systems. Client is not relying on Provider to identify, assess, or communicate any such risks.
6.2 No Warranty. Provider makes no representation or warranty, express or implied, regarding the performance, security, reliability, fitness for a particular purpose, or compatibility of any Third-Party Software with Client Systems or any other software or hardware. Provider has not reviewed, tested, or evaluated any Third-Party Software and makes no assurance of any kind with respect thereto.
6.3 Assumption of Risk. Client voluntarily and continuously assumes all risks associated with the installation, deployment, configuration, use, and continued operation of Third-Party Software, including risks of Data Loss Events, Security Incidents, Downtime, regulatory penalties, and damage to third-party systems or data. Client assumes these risks exclusively based on its own independent evaluation and the decisions of its Change Approval Board.
6.4 Backup Responsibility. Client is solely responsible for ensuring that complete and current backups of all Client data, configurations, and systems are maintained prior to and during any Third-Party Software deployment, whether or not Provider maintains backup services under the MSA.
6.5 Licensing & Compliance. Client represents, on a continuing basis, that it holds all necessary licenses, rights, and permissions for all Third-Party Software and that its use complies with all applicable laws and contractual obligations. Client shall indemnify Provider from any claims arising from Client’s failure to maintain valid software licenses.
6.6 Approver Authority & Client Responsibility for CAB. Client represents and warrants that: (i) each designated Third-Party Software Change Approver is an employee or authorized representative of Client; (ii) each Third-Party Software Change Approver has full authority to independently bind Client to the terms of this Waiver with respect to each CAB Approval issued; (iii) Provider is entitled to rely on CAB Approvals issued through the Ticketing System without independent verification of the Approver’s identity or authority; and (iv) Client is solely responsible for the composition, operation, decisions, and oversight of its Change Approval Board, and Provider bears no liability arising from the CAB’s approval or denial of any Software Request Ticket.
7. RELEASE & WAIVER OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND ON A STANDING BASIS APPLICABLE TO ALL THIRD-PARTY SOFTWARE THAT HAS RECEIVED CAB APPROVAL THROUGHOUT THE TERM, CLIENT HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE PROVIDER AND PROVIDER PERSONNEL FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, LIABILITIES, DAMAGES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO:
(i) any Software Request Ticket submitted by Client and acted upon by Provider following CAB Approval, at any time during the Term;
(ii) the installation, configuration, deployment, updating, or removal of any Third-Party Software following CAB Approval;
(iii) any Data Loss Event, Security Incident, or Downtime caused by or attributable to any Third-Party Software;
(iv) any incompatibility between Third-Party Software and Client Systems, Provider’s standard tools, or any other software or hardware;
(v) any regulatory penalties, fines, or sanctions arising from Client’s selection or use of Third-Party Software; and
(vi) any acts or omissions of any Third-Party Vendor in connection with Third-Party Software.
8. LIMITATION OF LIABILITY
Notwithstanding any other provision of this Waiver or the MSA, in no event shall Provider’s aggregate liability arising out of or related to all Third-Party Software exceed the total fees paid by Client to Provider for managed services listed in the MSA in the one (1) month immediately preceding the event giving rise to the claim. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIRD-PARTY SOFTWARE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. TERM & SURVIVAL
9.1 Term. This Waiver shall remain in full force and effect for the entire duration of the MSA and any renewal or successor agreement between the Parties, unless earlier terminated pursuant to Section 9.2.
9.2 Termination. Either Party may terminate this Waiver upon thirty (30) days’ prior written notice to the other Party. Termination shall not affect the application of this Waiver to any Software Request Ticket for which CAB Approval was issued prior to the effective date of termination.
9.3 Survival. The release of liability in Section 7, the limitation of liability in Section 8, and the Client acknowledgments in Section 6 shall survive the expiration or termination of this Waiver and the MSA with respect to all Third-Party Software installed or deployed prior to termination.
10. GENERAL PROVISIONS
10.1 Governing Law. This Waiver shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflict of law principles.
10.2 Order of Precedence. This Waiver is incorporated into and made a part of the MSA. In the event of any conflict or inconsistency between this Waiver and the Master Services Agreement (“MSA”) or any Service Attachment executed between the parties, the following order of precedence shall apply:
- The Master Services Agreement (MSA)
- The applicable Service Attachment(s)
- This Waiver
To the extent this Waiver imposes additional releases, waivers or limitations of liability or disclaimers of warranty beyond those in the MSA or Service Attachment, such limitations shall be deemed supplemental and enforceable unless expressly prohibited by the MSA.
10.3 Severability. If any provision of this Waiver is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
10.4 Entire Agreement. This Waiver, together with the MSA, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions and agreements relating thereto.
10.5 Amendment. This Waiver may be amended only by a written instrument signed by authorized representatives of both Parties. Provider may update the Approved Software List or the designated Ticketing System upon written notice to Client without requiring amendment of this Waiver.
10.6 Counterparts & Electronic Signatures. This Waiver may be executed in counterparts, each of which shall be deemed an original. Electronic or digital signatures shall be deemed valid and binding.
11. SIGNATURES
IN WITNESS WHEREOF, the Parties have executed this Standing Waiver of Liability as of the Effective Date. By signing below, each Party agrees that this Waiver is executed ONCE and applies automatically and continuously to all Third-Party Software that receives CAB Approval for the entire Term.
PROVIDER CLIENT
OverclockedIT LLC
Signature: _________________________________ Signature: ______________________________
Printed Name: ______________________________ Printed Name: ___________________________
Title: ______________________________________ Title: __________________________________
Date: _____________________________________ Date: __________________________________
DESIGNATED THIRD-PARTY SOFTWARE CHANGE APPROVERS (CLIENT)
By completing this section, Client designates the following individuals as its authorized Third-Party Software Change Approvers under Section 3.15 of this Waiver. Each individual listed below is independently authorized to review and issue CAB Approval for Software Request Tickets on Client’s behalf. Client shall notify Provider promptly in writing of any additions, removals, or changes to this list.
Approver No. 1
Name: _________________________________________________
Email: _________________________________________________
Effective As Of: ________________________________________
Approver No. 2
Name: _________________________________________________
Email: _________________________________________________
Effective As Of: ________________________________________
Approver No. 3
Name: _________________________________________________
Email: _________________________________________________
Effective As Of: ________________________________________
THIS DOCUMENT CONSTITUTES A LEGALLY BINDING STANDING WAIVER. IT APPLIES ONCE SIGNED AND COVERS ALL FUTURE CAB-APPROVED THIRD-PARTY SOFTWARE REQUESTS FOR THE DURATION OF THE SERVICE RELATIONSHIP. CLIENT IS ADVISED TO CONSULT INDEPENDENT LEGAL COUNSEL PRIOR TO EXECUTION.
