Terms of Service
DEFINITIONS AND INTERPRETATION
In these General Service Terms and Conditions (“Conditions” “This Agreement”), as well as any Quotes, Estimates, Statements of Work, Service Orders, Service Schedules, Rate Schedules, Proposals or any other agreements pursuant to which We quote or perform Services or supply products to You (“Service Agreements”), the following words have the following meanings:
“this Agreement” means these Service Terms and Conditions;
“After Hours” means from 17:00 – 08:00 hours EST Monday to Friday; all day Saturday and Sunday; and all Public Holidays;
“Business Hours” means Monday to Friday from 08:00 to 17:00 hours EST excluding Public Holidays;
“Client“, “You” or “Your” means You, the person or entity obtaining Goods or Services from Us by entering into this Agreement or any Service Agreement of which this Agreement is a part or which incorporates the terms of this Agreement by reference;
“Client Handbook” refers to the informational booklet we give our clients containing important information on the day-to-day aspects of working with Us, such as steps to request services, how to escalate issues, etc;
“Conditions” means these General Service Terms and Conditions;
“Commitment Term” means the term or duration of a Managed Service Plan, which is also the minimum period of time for which Monthly Service Fees under any plan are due and payable upon signing any Service Agreement with Us.
“Due Date” means the date an invoice is due. Unless otherwise specified in Your Service Agreement or invoice, all invoices issued by Us are due and payable seven (7) days from the date of the Invoice;
“Estimate” has the same meaning as “Quote” below;
“Goods” means any products, such as computer hardware, Software, tools, equipment, accessories and other products sourced by Us or provided by Us to You in connection with any goods and/or Services;
“IT Network” means any and all hardware, software, equipment, network, IT system, configuration and infrastructure and other products, services, properties and assets provided to You by Us;
“IST” has the meaning given to it under Indiana Sales Tax;
“Party” means either You or Us;
“Period” means a particular number of half-days, days, weeks, quarters, months, years or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;
“Prices” means the amount charged for Goods and Services provided by Us in any form, including but not limited to Our Monthly Service Fees charged for our ongoing Service Plans, and or Rates as defined below;
“Public Holidays” means any day which is a public holiday throughout the state of Indiana;
“Rates” means the hourly rates and other charges for Services (including any call-out fees, guaranteed response fees, and any return/cancellation fees) set out in this Agreement, any Service & Fee Schedule, Plan, Quote, contract or other arrangement entered into by Us and You, and includes any monies payable to Us on a quantum meruit basis for any work We have done;
“Recommended Technology Platform” or “RTP” refers to the list of the technologies that We use to create a well-integrated, reliable and secure IT infrastructures for each of Our clients.
“Service Agreements” means any Quotes, Estimates, Statements of Work, Service Orders, Service Schedules, Rate Schedules, Proposals or any other agreements pursuant to which We quote or perform Services or supply products to You
“Monthly Service Fees” means the fees payable every month by Clients on our ongoing Service Plans for the duration of the Commitment Term;
“Primary IT Contact” means a member of Your team designated by You to act as the primary contact with whom We can communicate about Your account, services, tickets and any issues relating to Your Services; and the team member who acts as Our eyes and hands onsite, so that We can remotely diagnose and solve issues in the fastest possible manner;
“Proposal” has the same meaning as “Quote” below;
“Service Schedule” means the schedule of rates, charges and conditions for the Services of Ours as set, and as may be varied, by Us from time to time in Our absolute discretion subject to the provisions of this Agreement;
“Service Order” or “Service Request” means a Quote provided by Us and approved by You, or a request for Goods or Services made by You under an applicable Service Agreement and approved by Us, including tickets submitted through our online portal or support requests We receive via email;
“Return/Cancellation Fee” means a fee charged to cover the administrative work done by us and incidental charges when you cancel a Service prior to its completion, as set by Us from time to time;
“Services” means any services provided by Us to You including Work, advice, analysis and recommendations;
“Service Plan” or “Managed Service Plan” means any of our managed service plans (for example, our Full Service Plan, Casual Service Plan and Hybrid Service Plan) or any other arrangement between Us and You pursuant to which we provide ongoing managed IT services in exchange for a fixed monthly fee and a minimum one-year service commitment;
“Software” includes any software and any installation, update, associated software and any Services provided in connection with any of the foregoing;
“Quote” means a quote provided to You by Us, based on work specifications provided by You and the estimated (not necessarily final) costs associated therewith;
“Us“, “Our” or “We” means Onpoint Systems, Inc. and its heirs, successors and assigns;
“Work” means anything We may do, provide, perform, install, add, change, modify, customise, produce, procure or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new hardware, software, equipment, tools, consulting, analysis, scoping, planning, documenting and quoting for complex items.
In these Conditions and in every Service Agreement and communication in connection with the supply of goods or services by Us, unless the contrary intention appears:
Words denoting the singular number shall include the plural number and vice versa;
Reference to any gender shall include every other gender;
Reference to any Statute or Regulation shall include any amendment currently in force at the relevant time and any Statute or Regulation enacted or passed in substitution therefore;
Headings, titles and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
All references to dollars ($) are to USD;
A reference to time is to Eastern Standard Time (EST);
A reference to an individual or person includes a corporation, partnership, joint venture, limited liability, association, authority, trust, state or government, or any other entity and vice versa;
A reference to a recital, clause, schedule, appendix, addendum or exhibit is to a recital, clause, schedule, appendix, addendum or exhibit of or to these Conditions;
All recitals, schedules, appendices, addenda, exhibits or descriptions of the Parties referenced in these Conditions forms part of these Conditions;
A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
A reference to “includes” means includes without limitation;
A reference to “bankruptcy” or “winding up” includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.
COMMITMENT TERM AND TERMINATION
All Service Agreements remain in effect for the duration of the Commitment Term stated in the Service Agreement and may be terminated according to the provisions of the applicable Service Agreement.
If either You or We terminate a Service Agreement, We will assist You in the orderly termination or transfer of the services to another designated provider, provided that a) You submit payment in full for rendering such assistance at our normal rates as outlined in Our Rate Schedule in effect at the time of termination; b) if You request transfer of services to a new IT service provider, then the new provider is designated no less than fourteen (14) days prior to the expiration of the notice period to terminate your service as stated in your Service Agreement; and c) You return or pay for all hardware and equipment that is on lease to You pursuant to Your Service Agreement.
Failure to comply with this paragraph may result in Your accounts and all data, content, credentials and other information associated with same, being terminated and becoming unrecoverable.
CLIENTS ON OUR SERVICE PLANS
If You are an existing client on one of Our Service Plans, You may request a Service by entering a ticket or requesting a service through our online portal at http://onpointsystems.com. Upon receipt, we will review your request and will either a) send you a Quote with the list of tasks necessary to perform the work and the associated charges; or b) if the work is included with your Service Plan, commence handling the issue according to our Guaranteed Response Times.
NEW CLIENTS; OUT OF SCOPE PROJECTS
If You are a new client, an existing client interested in a new Service Plan, or a client interested in a Service outside of your existing Service Plan, you may request a Quote or Estimate at http://www.onpointsystems.com, or you by sending an e-mail to firstname.lastname@example.org.
QUOTES AND ESTIMATES
Validity and Effect. A Quote, Proposal or Estimate (“Quote”) is merely an invitation from Us to You to place an Order with Us for the products and/or services listed in the Quote. The issuance of a Quote will not create a binding contract between You and Us. Quotes are valid for 30 days unless otherwise specified in the Quote. Quotes are automatically cancelled upon expiration of the Quote Term, without any need on Our part to notify You. Once a Quote is cancelled, a new Quote needs to be requested in order to move forward with a service.
Quoted Price Variations. Our Quotes are based on the information provided by You, Our estimation of the work required to complete the services based on said information, and the estimated cost to perform the work at the time the Quote is given. The prices stated in any Quote are subject to change based on a) any request by You to change or modify the products and/or services requested; or b) price and supply fluctuations outside of Our control affecting the products or services required to perform the work stated in the Quote. If a product has undergone a price drop or a price increase, the price will be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted with a different product that serves the same purpose, subject to Your final approval. Price on non-stocked products are subjected to price and stock fluctuations and can only be confirmed once the Quote is accepted and turned into a Service Order or other Service Agreement signed by You and Us to perform the work. If applicable, Shipping charges will be added to all orders unless otherwise stated. Any included delivery charges are estimates only.
Controlling Agreement. Any Quote that has been approved by Us and confirmed by You at the prices and estimated timeframes stated therein, will be converted to a Service Order, which will be subject to these Conditions as well as any applicable Service Agreement.
Quoted Service and Delivery Times. Estimated service and delivery times stated in Quotes are estimates only. As these times are based on the estimates provided to Us by Our vendors and suppliers, and may be subject to other factors beyond our control, they shall not be deemed actual promised or guaranteed delivery dates.
Refunds and Restocking Fees for Cancelled Service Orders. Our Refunds and Cancellations Policy is set forth below. Additionally, We do not keep inventory on hand, but instead We order items once We receive a Service Order or an approval of a Quote from You. As a result, if You would like to return an item or cancel a Service Order, a restocking fee determined at the time of the return/cancellation request may apply. If We do not receive written approval from the distributor(s) that Your items are returnable, We will not be able to issue refunds for any such items.
Discounts and Promotions. When a special price or discount offer has been applied to a Quote, no other special promotion, discount or bonus offer will be applicable.
Varying or Withdrawing Quotes. We may vary or withdraw a Quote at any time, in Our absolute discretion, and for any reason including unavailability of the Goods or Services or a material increase in the cost of the Goods or Services after the date of the Quote
SERVICES & SERVICE REQUESTS
Scope of Services. Any Services We provide are described in detail in the applicable Service Agreement.
Service Plans. We may withdraw the provision of, or vary the scope or terms of, or add to or change, any of Our Service Plans at any time, in Our absolute discretion, and without notice.
Requesting Services. If You need to request a service, You may initiate a request by sending Us an email to email@example.com or requesting a Quote or Service Order through our web based Client Portal. When requesting a Quote or initiating a Service Order, You must provide a detailed description of the issue and the specific services requested, so that we can review the issue and either approve the Service Order and commence the work, or provide You with a Quote if the work falls outside of the scope of your Service Plan. In some cases, we may contact you for additional information in order to determine the scope of the required service before providing You with a Quote or beginning the work.
When requesting a Quote or placing a Service Order, You acknowledge that You are solely responsible for the completeness and accuracy of all information provided to Us.
Each Quote and Service Order is subject to and incorporates the provisions of this Agreement and any Service Agreement in effect between You and Us.
Approval of Quotes and Service Orders. All Quotes and Service Orders are subject to availability and acceptance. Service Orders will be deemed accepted by Us once We either perform the work (such as where the task is included with your Service Plan) or when we provide You with a confirmation stating a) the term or estimated duration of the Service; b) the pricing, including any monthly recurring charges as well as any non-recurring charges such as software, equipment and other costs or expenses payable in addition to Our regular rates; and c) any additional specific terms applicable to the performance of the Services listed in the Service Order. The Service Order will be deemed accepted by You when a) if the Service is included in Your Service Plan, when the request for the Service is placed; or b) if the service is not included with your Service Plan, once Your duly appointed representative indicates their approval and consent to the terms stated therein.
Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of a Service Order or Quote approval. If any Service Order or Quote approval is signed or sent from an email address associated with You or Your business and/or approved through Your account via Our web-based ordering system, You hereby acknowledge that such Order shall be deemed to be signed and duly authorised by You.
Service Order Term. The term of each Service Order will commence on the date specified by Us when accepting the Service Order or on the date that We begin work on the Service, and shall continue for the period of time specified in that Service Order or until a) the work under the Service Order has been completed or b) the Service Order has been renewed or terminated. We reserve the right to increase rates for any Services provided thereunder upon at least fourteen (14) days’ written notice.
Service Order Termination. If You terminate a Service Order prior to its completion, You will be responsible for all costs and expenses incurred by Us pursuant to the Service Order, including any and all software, equipment, subscription, installation and special construction costs, and any and all other costs and other fees incurred by Us as a result of the Service, along with a cancellation fee equal to thirty (30)% of the total fees or estimated project fees stated in the Service Order.
Processes and Procedures. We have processes and procedures that We follow in the course of providing Our Services to our clients. You agree to cooperate with Us and to comply with such processes and procedures as advised to You from time to time via Our Client Handbook, handbook, e-mail, update to these Conditions, or otherwise.
Exclusions. While We will always make reasonable efforts to provide support and troubleshoot issues as requested, our obligations and guaranteed time frames, if any, apply only to the systems, equipment, hardware, software, network, infrastructure, security measures, processes, configurations and Services listed in our Service Agreement.
Our Services do not cover, and You agree that We have no liability or obligation with respect to a) any issues caused by using equipment, software or service(s) in a way that is not recommended; b) issues resulting from unauthorized changes made by You to the configuration or setup of equipment, software or Services; c) issues caused by Your actions that have prevented or hindered Us in performing required and recommended maintenance upgrades; d) issues resulting from work performed by You or any of Your contractors other than Us on the systems, software, equipment and Services provided under or covered by this Agreement (“Excluded Services”). Under no event will We be liable for any claims, losses or expenses relating to such Excluded Services; and any tasks to be performed by Us which relate to such Excluded Services must be requested and paid pursuant to a properly executed Service Order regarding same.
PRICING AND RATES
Rates exclude Tax. All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).
Service & Fee Schedule. You must pay for Goods and Services at the Rates set out in any applicable Service Agreement between You and Us.
Call-Out and Escalation Fees. You acknowledge that call-out fees and emergency service fees may be charged in addition to our regular Rates and/or Monthly Service Fees set forth in Your Service Agreement.
Return/Cancellation Fee. Where We arrange a return or refund of a product ordered by You or on Your behalf, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation Fee to cover shipping and the administration costs incurred by Us in processing the return or refund, or in processing the Order, the cancellation and any refund. If applicable, We may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to You by Us.
Expenses. Out-of-pocket expenses incurred by Us in providing the Services to You are charged in addition to the service rates, call-out fees, and other special charges. Such expenses include: travel costs, flights, rental car and mileage expenses, insurance, taxi fares, accommodation, reasonable meal expenses, tolls, parking, and other expenses (“Additional Expenses”). All Additional Expenses shall be reimbursable in full, where properly invoiced and supported with documentation in the form of receipts. Where appropriate, We will make our best efforts to obtain prior written authorisation from You before such expenses are incurred; however, We are entitled to reimbursement of all Additional Expenses even if we are unsuccessful in obtaining such prior written authorisation from You.
Separate charges for Goods and Services. We may, in Our absolute discretion, charge for Goods separately from Services or We may group Goods and Services together into a single fee, as we deem appropriate.
Calculation of Increments. Where a charge is calculated based on increments of time, as specified in our Rate Schedules, (for example, some tasks are billed in increments of 1 hour while others are billed in 30-minute increments), We will charge the applicable rate for the whole increment of time even if the work may not have consumed the entire increment of time.
Change in underlying costs. Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates and Fees.
RETURNS, REFUNDS AND CLAIMS
General Returns Policy. Notwithstanding anything in these Conditions or in any applicable Service Agreement, You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold Us harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.
Customised Goods Not Returnable. Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is in Our determination special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Us to the manufacturer or supplier or any related services may not be cancelled, You may not return the Goods to Us or cancel any Services we agreed to provide in relation to such Goods.
Duty to Inspect. You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery, You may give written notice to Us of your request to return the Goods, ask for a refund, or make a claim. Your notice must include the reason for your request. If no such notice is given on time, You shall be deemed to have accepted the Goods and have waived the right to any return, refund or claim.
Return Condition. Where You are authorized to return any Goods, You must return same in their original condition and unopened, unless the reason for the return is that a) upon opening the packaging, the Goods proved to be different to what was described on the packaging or in the order, or b) the Goods are faulty. Goods that fail to meet the requirements of this paragraph are not eligible for return or refund.
Return costs. You will pay all costs and expenses incurred by Us in having the Goods shipped to You and in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services.
Consequences of use, installation, customization or sale. You will indemnify and hold Us harmless in respect of all allegations and claims in respect of any Goods that have been used, installed, customised, changed, donated or re-sold by You.
Refunds and Cancellations of Services. The fees paid or payable for Services already rendered by Us are non-refundable. Refunds and cancellations of Services not yet rendered may requested; however, such cancellations are subject to an administrative and cancellation fee of 15% of the fees specified in the mutually agreed/accepted Service Order or up to $750.00, whichever is greater. The foregoing cancellation fees are on top of and in addition to any costs and expenses We may have incurred in ordering hardware, equipment, software licenses, third party contractor labour, and other expenses which cannot be cancelled and shall be payable by You in full as stated in Our invoice.
COMPUTER UTILITY, FUNCTIONALITY AND FITNESS FOR PURPOSE
Service limitations given the science of computing. You acknowledge that the Services provided may reasonably involve trial and error from time to time, and that information technology is a science applied often in novel or unknown circumstances and involving experiment. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem You are having. While We will make what We consider (in Our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, You will always indemnify and hold Us harmless against all claims as provided in the Indemnity Clause of these Conditions with regard to Our provision of Services to You.
Reasonable Assistance Limits. We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances under any Service Plan. If You require additional Work beyond what We consider to be reasonable assistance, You agree that such additional Work will be billed at the applicable Rates set forth in Appendix I unless otherwise agreed. Without limiting Our discretion to determine what “reasonable assistance” means under any particular set of circumstances, in general, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have estimated the Work to take based on our experience and our knowledge of the facts and circumstances at the time we agreed to perform the Work.
Recommended Technology Platform. In order to make sure we can deliver quality service, We constantly work towards helping all of our clients use the technology we know, trust and love the best – We call this our “Recommended Technology Platform” or “RTP.” When entering into a Service Agreement with Us, You promise to cooperate with Us as much as practicable for Your business in adopting as much of our RTP as possible. This benefits all parties, as We always strive to keep updated on all components of Our RTP and to deepen our knowledge and training on everything in our RTP in order to keep Your IT Infrastructure high quality, nicely integrated, and fast to support.
Other Third Party Goods and Services. At times, You may specifically request, or We may recommend the purchase of third party Goods or Services outside of our RTP in situations where the purpose for which the Goods will be used or some function sought to be fulfilled that is not met by our RTP.
You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, such as the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment or the behaviour of third party supplier, e.g. in relation to support.
You acknowledge that for many reasons outside of Our control, sometimes the Goods may fail to meet Your expectations, may not turn out to be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects.
You further acknowledge that the Services provided by Us may involve the task of seeking to customise Goods so they may be fit for particular purposes and that customisation may be a very substantial project in itself that may fall outside of the scope of any of our Service Plans. Where We provide Services with a view to achieving Your purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), You must pay for those Services on time without any set-off or counter-claim, whether or not We are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that We have acted in good faith and have made what We consider, in Our absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
Testing Procedures. You agree to follow Our instructions with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, We will, subject to these Conditions and any applicable Service Agreement between You and Us, allocate such resources as We consider reasonable in the circumstances towards their resolution.
Alterations of Goods to Specifications. We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.
Substitute Goods. If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided however that You will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.
Licenses and Indemnity. We will provide You with all licenses and warranty information provided by third party suppliers of all software installed by Us. Unless expressly agreed upon by Us in writing otherwise, it is at all times exclusively Your duty and responsibility to store all licenses for all software used by You, so that that they can be reproduced if and when required. This includes all Software installed by Us.
Breach or Unauthorized Use. You agree to indemnify and hold Us and each of Our members, shareholders, successors, assigns, directors, officers, employees, agents and subcontractors (the “Released Parties”) harmless from and against any and all liabilities, claims, causes of action, lawsuits and/or demands of whatever kind or nature, either in law or equity, including all direct, indirect, incidental, special or consequential damages (including without limitation, damages for interruption of services, loss of business, loss of profits, loss of revenue, loss of date, or loss or increased expense of use client or any third party incurs), as well as any and all other claims, whether in an action in contract, warranty, tort (including without limitation, negligence), or strict liability, which arise out of or are in any way related, directly or indirectly, to a) any unauthorized software use by You or your employees, directors and officers, agents, representatives and contractors, b) any breach of any software license in respect of software provided to Us by You to be installed on one or more of Your computers or equipment, c) otherwise as a result of Us installing Software at Your direction and supplied by You where You are not authorised to use the Software, or d) any problem, defect or malfunction associated with any software (or related services) supplied by third parties.
Power of Attorney. You agree and irrevocably appoint Us as Power of Attorney to accept terms and conditions or end user license agreement (EULA) for any and all Software requested installed by You. This enables Us to thoroughly ensure the proper acquisition, installation, and usage of all necessary Software for Your specific purpose and IT set up.
Copyright. All copyright in custom software owned by Us remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.
LIMITED WARRANTY AND WARRANTY DISCLAIMER
We warrant, for a period of thirty (30) days following delivery of any Services (the “Warranty Period”) that all Services will be performed in a professional manner and in accordance with generally applicable industry standards. Our sole liability (and Your exclusive remedy) for any breach of this Warranty shall be for Us to re-perform any deficient services, or, if We are unable to remedy such deficiency within thirty (30) days, to void the invoice for the deficient services. We shall have no obligation with respect to any Warranty claim if (1) We are notified of such claim after the Warranty Period or (2) the claim is the result of third-party hardware of software, Your actions, or the actions or omissions of some other party or is otherwise caused by factors outside the reasonable control of Consultant.
THIS SECTION IS A LIMITED WARRANTY AND SETS FORTH THE ONLY WARRANTIES MADE BY US. WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY GOODS AND/OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY US. YOU MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.
We will pass along to You any third-party warranties relating to any goods purchased and/or installed by Us on Your premises and/or equipment.
You agree to rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal directly with such manufacturer rather than Us for all claims covered by such warranties. You further agree to indemnify and hold Us harmless of any of the obligations of a manufacturer in respect of such Goods. This includes any damages or moneys due to You arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the Goods.
We make no representations or warranties in relation to information available on Our website, including without limitation: a) that the information on Our website is complete or correct; b) that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software; and that We endorse any internet site linked to Our website or any third party products or services referred to on Our website.
LIMITATION OF LIABILITY
BY ENTERING INTO ANY SERVICE AGREEMENT OF WHICH THESE CONDITIONS ARE A PART, YOU UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LIABILITIES. PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS WHICH MAY OCCUR AS A RESULT OF THE USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL THE AGGREGATE AMOUNT YOU MAY RECOVER FROM US UNDER ANY CIRCUMSTANCE FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES AND/OR THIS AGREEMENT, FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO CONSULTANT’S NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY (“CLIENT’S CLAIMS”) EXCEED THE TOTAL OF THE TOTAL CHARGES YOU PAID TO US IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE ALLEGED LOSS. THE FOREGOING SUM REPRESENTS OUR TOTAL LIABILITY FOR ALL OF YOUR POTENTIAL AND ACTUAL CLAIMS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF OURS.
We are further not liable for any loss or damage of any kind, however caused, which is suffered or incurred by You in connection with Your use of Our website (including the use of a credit card or other debit device) or any linked website; the non-availability of Goods or Our Services for any reason; any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by You; or for any other reason whatsoever.
Where applicable, We will use our best efforts to dispatch Goods within a reasonable time, but do not accept any liability for late delivery, non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours, including, for example, due to failures in supply to Us or delays caused by third parties, such as delivery companies, suppliers, distributors, customs and other government agencies, or manufacturers.
To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, this clause does not apply to that liability and Our liability for any breach of that condition or warranty is limited to Our doing any one or more of the following, at Our election: a) replacing the Goods or supplying equivalent Goods, Services or Work; b) repairing the Goods or the Work; c) paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or d) paying the cost of having the Goods or the Work repaired.
Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be contractually excluded, restricted or modified.
If any provision contained in this section is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions of the Conditions.
Each Party (“Indemnifying Party”) agrees to release, indemnify, defend and hold harmless the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from and against all claims, losses, expenses, fees, damages and liabilities, including reasonable attorney fees and disbursements, costs, and judgments, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this Agreement, except for those damages, costs, expenses and liabilities arising from the negligence or wilful misconduct of the Indemnified Party; provided, however, that We are not obligated to indemnify You, and You shall defend and indemnify Us hereunder, for any claims by any third party, including any of Your clients and/or customers, arising from services provided by You that incorporate any of Our Services or Goods supplied by Us, including but not limited to (a) the violation of any applicable law by the You or Your clients and/or customers; (b) damage to property or personal injury (including death) arising out of the acts or omissions of Your clients and/or customers; (c) termination or suspension of Your Services or those of Your clients and/or customers due You being in default of any agreement with Us, including these Conditions and any Service Agreements; or (d) claims by any third party, including without limitation Your clients and/or customers, arising out of or related to the use or misuse of any Service. In all claims for Indemnity under this paragraph, the Indemnifying Party’s obligation shall be calculated on a comparative basis of fault and responsibility. Neither party shall be obligated to indemnify the other in any manner whatsoever for claims, losses, expenses, or damages resulting from the other party’s own negligence.
The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.
ERRORS AND OMISSIONS
We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment from You. Our liability in that event will be limited to the return of any money You have paid in respect of the Order.
PRIVACY STATEMENTS AND YOUR RIGHTS
We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and it may retain and use it for any such purposes (“Authorised Purposes”). You are required to provide your personal information to Us for Authorised Purposes.
We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for you or in order to provide Goods or Services to You, to verify the information You provide, for enquiries about Goods or Services that may be suitable for your purposes, or to confirm Your requirements, to anyone proposing to supply Goods or Services to You, or to acquire Goods or Services on Your behalf, or in respect of enquiries relating to any of the foregoing.
Otherwise We will not disclose Your personal information without Your consent unless authorised by law. Your personal information will be held by Us at Our Principal Place of Business and You can contact Us to request to access or correct it. We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if you submit incorrect information.
USING PRODUCTS AND SERVICES AS INTENDED
In order for Us to be able to provide You with the Services in a timely and effective manner, You agree to use all hardware, software, equipment, accounts, network, IT system, configuration and infrastructure and any products, services, properties and assets provided to You by Us (“IT Network”) only as intended and advised by Us.
UPDATES, COMMUNICATION AND TIMELY NOTIFICATION OF ISSUES
You agree to notify Us of any issues or problems with Your IT Network or any component thereof in a timely manner, so we can maximize our chances to address problems and issues before they escalate and get out of hand;
You further agree to keep Us informed about potential changes to your IT system and maintain good communication with Us at all times.
LODGING OF SERVICE REQUESTS
In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of Service Requests as outlined in Your Service Agreement, Client Handbook, or any client handbook or other policy document which We may issue regarding our policies, procedures and processes.
ACCESS TO SYSTEMS, SITES AND PEOPLE
In order to provide You with the agreed Service, You agree to give Us access to Your IT Network, as well as Your personnel, sites, and other items as and when requested by Us for the purposes of maintenance, updates and fault prevention.
You agree to allow Us to install software on Your Equipment that allows Our technicians to access, monitor and/or make changes to Your systems at any time. Among other things, this software allows Us to view system statuses, send and receive monitoring information, see users’ desktops and control Your PCs. If the performance of Our work requires that You leave devices powered on overnight or weekends, You agree to do so upon Our written request.
THIRD PARTY AUTHORIZATIONS
At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorisation for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.
PAYMENT, LATE PAYMENT AND DEFAULT
Charges and Billing. You agree to pay all charges, fees, prices and rates for the Goods and Services provided by Us as specified in any Service Agreement between You and Us and/or the applicable invoice issued to You by Us. Unless otherwise agreed in writing, charges for each Service shall begin to accrue at the time the work is commenced by Us.
Full Service Plans. Monthly Service Fees for Our ongoing Managed Service Plans are invoiced monthly. Additional charges for Goods and Services that fall outside of the scope of the Service Plan, along with charges for emergency upgrades, call-out and travel fees, shipping costs and other items not covered in the Monthly Service Fee are added to the Invoice covering the period in which the charges were incurred. Invoices for Managed Service Plans are sent via e-mail.
Casual Plans and Services Performed at Hourly Rates. Services performed at Our regular or special hourly rates and fees (when the service or charge is not covered by the Monthly Service Fee paid for an ongoing Managed Service Plan) are invoiced after completion of the Service. Each time We complete a task the amount of time spent working on the task is added to the ticket corresponding to the issue. Once the ticket is marked as “resolved,” an Invoice is created listing all tasks and corresponding rates, fees and charges. Invoices are sent out twice a month via e-mail.
All invoices must be paid no later than seven (7) days from the date of the invoice (“Due Date”) via check, credit card, ACH payment or as otherwise specified on the Invoice.
Annual Fee Increase: In order to account for rising operating costs, cost of inflation and price increases by our vendors and suppliers, the Monthly Service Fee provided above is subject to an annual increase of 5% each calendar year, on the anniversary of the signing of this Agreement. The fee increase applies to all contracts regardless of term, and will be communicated to You no less than 30 days in advance of the increase. As We guarantee that the rate of increase will never exceed 5%, a change in the Monthly Service Fee as described this paragraph shall not serve as grounds for terminating this Agreement.
Taxes and Other Fees. All charges for the Services are exclusive of any taxes and other fees and surcharges. You are responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, and bypass (“Taxes”).
Late Payments. If You fail to pay an invoice within seven (7) days of the Due Date or automatic payment is rejected or declined (“Payment Default”), We may, in Our absolute discretion and without prior notice, we may suspend Services provided to You, including Software subscriptions and licenses we manage on Your behalf, until payment for all past-due amounts is received in full, or We may terminate this Agreement and/or any or all of the Services being provided hereunder with immediate effect and no notice to You.
Our right to terminate Services for non-payment includes the cancellation, termination and possible permanent deletion of any subscriptions, accounts, licenses and permissions managed and paid for by Us on Your behalf, including but not limited to any third-party vendor accounts and any and all user licenses, credentials, data, and information associated therewith, may be deactivated and permanently deleted and unrecoverable.
Late Fees and Collection Expenses. In the event of a Payment Default, You further agree to pay a late fee on any past-due amounts owed to Us at the higher of one and a half percent (1.5%) per month or the maximum rate allowed by applicable law. Interest shall be calculated and charged daily on and from the Due Date until the Sum Due is paid in full.
If We use a collection agency or attorney to collect a late or returned payment, You agree to pay all reasonable costs of collection or other action. These remedies are in addition to and not in limitation of any other rights and remedies available to Consultant under the Agreement, at law or in equity.
In the event of a Payment Default, all sums which would have become due and payable by You to Us pursuant to this Agreement or any Service Order at a later date shall become immediately due and payable without any further notice to You.
Application of funds: All payments made by You to Us will be applied as follows:
- First, payments will be applied toward any costs (including legal costs), charges or expenses paid by Us in relation to any returned check fees, collection costs, attorney fees, or any other actions taken by Us for the recovery of any past-due amounts owed by You to Us;
- Second, payments will be applied toward the payment of any interest due or payable hereunder; and
- Third, payment amounts will be applied toward the payment of Your debts to Us in order from the longest standing due to the most recently incurred.
Payment Arrangements. In the event that a payment arrangement is made with regard to any sum due to You by Us, should a repayment due under that arrangement not be made on time, We may, in Our absolute discretion and without prior notice, immediately suspend or discontinue the supply of Goods or Services to You under the same terms as those in the clause titled “Late Payments” above.
Power of Attorney. You agree and irrevocably appoint Us as Power of Attorney to do anything We consider fit for the recovery of any past-due payment amounts and/ or the creation, perfection or enforcement of any collateral held or to be held as security for same.
Other remedies. The remedies stated herein are in addition to and not in limitation of any other rights and remedies available to Us under these Conditions, at law or in equity.
Invoice Disputes. To the extent that You dispute any portion of an invoice in good faith, You shall notify Us in writing and provide detailed documentation supporting your dispute within seven (7) days of the invoice date. Failure to do so shall result in Your right to any billing adjustment being forever and irrevocably waived. In the event of a billing dispute, You shall timely pay all undisputed amounts. If the dispute is resolved against You, the You must pay amounts due plus interest from the original Due Date of the amount owed. You may not offset disputed amounts from one invoice against payments due on the same or another account or invoice.
NON SOLICITATION OF CONTRACTORS AND EMPLOYEES
Our contractors and employees are among Our most valuable assets. Accordingly, by signing this Agreement, You agree that, for the duration of this Agreement and for two (2) years following termination of same, You may not, directly or indirectly, individually or on behalf of any person or entity, solicit or contact any of Our officers, directors, members, shareholders, employees or contractors, vendors, suppliers, or business partners (“Business Contacts”) with a view to inducing or encouraging such Business Contact to discontinue, curtail or not engage in any business relationship with Us. You further agree that You will not request, advise, induce, aid, endeavor or influence any established Business Contacts of Us to withdraw, curtail or terminate its business with Us.
You further agree not disclose to any person, firm or entity, the names, identities, or personal information of any of Our Business Contacts or any other information pertaining to them, nor shall You call on, solicit, take away, or attempt to call on, solicit, or take away any Business Contact of Ours with whom You had contact or became acquainted during the term of this Agreement and as the direct or indirect result of Your business relationship with Us.
Permitted Hirings and Business. (a) Voluntary Contacts. You may employ or accept the business of Our Business Contacts who contact You on their own initiative without any direct or indirect solicitation or encouragement by You; (b) Former Employees. You may employ any of Our former officers, directors, contractors or employees whose relationship with Us has terminated without any inducement from or involvement by You.
You agree that Our damages resulting from Your solicitation of Our officers, directors, members, employees or contractors would be impracticable and that it would be extremely difficult for Us to ascertain the actual amount of damages. Therefore, in the event that You violate this Section by inducing any of Our officers, directors, members, employees or contractors to terminate their relationship with Us, You agree to immediately pay Us 100% of such personnel’s total annual compensation, as liquidated damages, and We shall have the option to terminate this Agreement without further notice or liability to You. The amount of liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs We would incur to identify, recruit, hire and train suitable replacements for such personnel.
Injunctive Relief. You hereby acknowledge that 1) if You violates any of their duties under this Section, We will suffer irreparable damage; and (2) that monetary damages will be inadequate to compensate Us for such damage resulting from the breach. Therefore, in the event of a breach, We shall be entitled to injunctive relief and/or preliminary injunction against You, without the need to post a bond, in addition to any other remedies at law or equity, to enforce such provisions.
During the course of working with Us, You may be furnished with, or given access to, certain confidential and/or proprietary information of Ours, and likewise, we may be exposed to similar information belonging to You. Some of that information may be Confidential Information, as defined below, which must not be disclosed by the Party receiving the information to any third party, and shall not be used by either Party for purposes other than those contemplated by this Agreement.
Information Subject to Confidentiality. Confidential Information may include, but is not limited to, the following:
- Any materials regardless of form furnished by either Party to the other for use;
- Any information furnished by any Party that is stamped “confidential,” “proprietary,” or with a similar legend, or any information that any Party makes similar reasonable efforts to maintain secret;
- Any business or marketing plans, strategies, customer lists, operating procedures, design formulas, know-how, processes, programs, software, inventories, discoveries, improvements of any kind, sales projections, strategies, pricing information; and other confidential trade secrets, data and knowledge of either Party;
- Any information belonging to employees, agents, members, shareholders, owners, customers, suppliers, vendors, contractors, business partners and affiliates of either Party;
- Any non-public inventions the rights to which have not been assigned to the Party receiving the information;
- Any non-public and proprietary technical information belonging to either Party, the rights to which have not been assigned to the party receiving the information.
and other proprietary information owned by either Party, (collectively “Confidential Information”), which are valuable, special and/or unique assets of that Party.
Any templates, schematics, processes or technical documentation provided by Us shall be deemed Confidential Information and proprietary without any marking or further designation. You may use such information solely for its own internal business purposes.
We shall maintain the confidentiality of information in Our possession regarding individual protected health information in accordance with applicable law, and shall not release such information, to any other person or entity, except as required by law.
Non-Disclosure. Neither Party will disclose or use, either during or after the term of these Conditions or any Service Agreement, in any manner, directly or indirectly, any such Confidential Information of the other Party, for their own benefit or the benefit of any third party. Neither Party will use, share, divulge, disclose or communicate in any manner whatsoever any Confidential Information to any third party without the prior written consent of the other Party, except to the extent specifically permitted under this Agreement.
Both Parties will protect all Confidential Information of the other, and will treat it as strictly confidential, unless and until: a) said information becomes known to third parties not under any obligation of confidentiality to the party whose confidential information is at issue (“Disclosing Party”), or becomes publicly known through no fault of the other party (the “Receiving Party”); or b) said information was already in the Receiving Party’s possession prior to its disclosure, except in cases where the information has been covered by a preexisting Confidentiality Agreement; or c) said information is subsequently disclosed by a third party not under any obligation of confidentiality to the Disclosing Party; or d) said information is approved for disclosure by prior written consent of the Disclosing Party; or e) said information is required to be disclosed by court order or governmental law or regulation, provided that the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure; or f) said information is proven independently developed by the Receiving Party without recourse or access to the information; or g) disclosure is required in order for a party to comply with its obligations under this Agreement, provided that prior to disclosure, the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure.
A violation of this paragraph shall be a material violation of this Agreement.
Employees and Agents. The Parties further agree to disclose the Confidential Information to their officers, directors, employees, contractors and agents (collectively, the “Agents”) solely on a need-to-know basis and represent that such Agents have signed appropriate non-disclosure agreements and/or that the Party receiving Confidential Information has taken appropriate measures imposing on such Agents a duty to (1) hold any Confidential Information received by such Agents in the strictest confidence, (2) not to disclose such Confidential Information to any third party, and (3) not to use such Confidential Information for the benefit of anyone other than the party to whom it belongs, without the prior express written authorization of the party disclosing same.
Unauthorized Disclosure of Confidential Information. If You disclose or threaten to disclose the Our Confidential Information to another party or to Our detriment or damage, in violation of these Conditions, you acknowledge and agree that We may suffer irreparable damage and shall be entitled to seek an award by any court of competent jurisdiction a temporary restraining order and/or preliminary injunction to restrain You from such unauthorized use or disclosure, in whole or in part, of such Confidential Information, without the need to post a bond, and/or from providing services to any party to whom such information has been disclosed or may be disclosed. You further agree to reimburse Us for any loss or expense incurred as a result of the infringement, including but not limited to court costs and reasonable attorney fees incurred by Us in enforcing the provisions of this Agreement, in addition to any other damages which may be proven. We shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages
You shall be in default of these Conditions and any Service Agreement of which these Conditions are made a part if You (a) fail to cure any Payment Default or monetary breach within ten (10) days of receiving notice of the breach from Us; (b) fail to cure any non-monetary breach of these Conditions and/or any Service Agreement within ten (10) days of receiving notice of the breach from Us; or (c) file or initiate proceedings or have proceedings filed or initiated against You seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Client Default”).
In the event of a Client Default, We may suspend Services to You until You remedy the Client Default, or We may terminate this Agreement and/or any or all of the Services being provided hereunder with immediate effect and no notice to You. We may, at Our sole option, but without any obligation, cure a non-monetary breach at Your expense at any point and invoice You for same. These remedies are in addition to and not a substitute for all other remedies contained in these Conditions or any Service Agreement or available to Us at law or in equity.
Intellectual Property. The following provisions shall apply with respect to all Intellectual Property owned, created and/or acquired by the Parties, including but not limited to copyrights and copyrightable works; policy and workflow templates; training videos and guides; forms such as onboarding, orientation, offboarding and service order forms; discoveries; trademarks, service marks and trade dresses; trade secrets such as business models, methodologies, know-how, systems, processes, notes, reports, documentation, drawings, computer programs, algorithms, marketing and advertising assets and strategies, inventions, creations, devices, customer and lead lists, customer acquisition and retention systems, internal manuals and trainings, works-in-progress and deliverables and any other proprietary and confidential information; patents, applications for patents and patentable works; and other protectable works (collectively referred to as “Intellectual Property”):
Our Intellectual Property. Except as otherwise specified herein, We shall retain ownership of all intellectual property developed or acquired prior to the effective date of this Agreement (“Background IP”), and/or developed or acquired independently of Our work for You. Save to the extent that such Background IP is incorporated into any Service or deliverable under this Agreement, or as may be necessary to perform the Services under this Agreement and as specifically stated herein, nothing in this Agreement shall be interpreted as an obligation on Our part to assign, give access to, or grant a license, express or implied, of Our Background IP to the Client.
We shall further retain all rights to any Intellectual Property developed or acquired by Us (or Our members, shareholders, contractors, employees and agents) independently of the Services provided under this Agreement, even if said Intellectual Property was developed after the Effective Date of this Agreement, except as expressly provided herein with regard to the limited licensing of intellectual property incorporated into the Services or deliverables provided to You. We further retain all rights to any and all other Intellectual Property we owns or may acquire that is not specifically assigned or licensed to You pursuant to a written Assignment Agreement.
All copyright in custom software created by Us remains Our sole property unless alternate arrangements are made as part of a separate software assignment agreement by and between You and Us.
Your Intellectual Property. All of Your Intellectual Property shall remain Your property, and You shall be the sole owner of all rights in connection therewith. We may only use, reproduce, store, modify, publish, export, adapt, edit and translate Your Intellectual Property to the extent that it is reasonably required for the performance of the Services or exercise Our rights under this Agreement.
License to Use Intellectual Property. Upon completion of the Services, and subject to full payment of all costs, fees and expenses due, Consultant hereby grants Company a worldwide, perpetual and irrevocable, non-exclusive, royalty-free license to use, copy, store, distribute, publish, adapt, edit and otherwise use any Intellectual Property of the Consultant incorporated into Consultant’s Services or deliverables to Company, for Company’s own internal business use only.
Warranty and breach. You warrant that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by You to Us belongs to You. In the event of any breach of this warranty, You will pay all sums due to Us as If such warranty had not been breached (and regardless of any non-performance of any obligation by Us on account of or in connection with the breach of such warranty). You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.
INDEPENDENT CONTRACTOR STATUS
Notwithstanding any provision hereof, it is understood by both Parties that in providing any Services to You, We are serving as an independent contractor and We are neither an employee nor a partner, joint venturer or agent of You. Neither Party may bind or attempt to bind the other to any contract, and any such contracts entered into in violation of this provision shall be void and unenforceable. As an Independent Contractor, unless this Agreement or an applicable Service Order specifically states otherwise, the manner in which the Services are to be performed, including but not limited to the scheduling of individual tasks and the specific hours to be worked by Us and Our employees, contractors and affiliates, shall be determined by Us. It is further understood that as an independent contractor, We may have other clients and may provide any services to any third party during the term of any Service Agreement with You.
As an independent contractor, We may engage such persons, corporations or other entities as We reasonably deems necessary for the purpose of performing the Services; provided, however, that We will remain responsible for the performance of all such Services and shall be considered to engage with any third party persons, corporations or other entities on Our own behalf. You understand and agree that Our contractors may have access to any and all client data in order to perform their tasks, and You hereby consent to such access and sharing of information for that limited purpose.
Any notices given under these Conditions or any Service Agreement between You and Us shall be in writing and sent by e-mail to the last notified e-mail address of the Party to whom the notice is sent.
GOVERNING LAW AND FORUM SELECTION
Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Indiana, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Indiana, excluding that State’s choice-of-law principles.
Choice of Forum. The Parties hereby agree that all demands, claims, actions, causes of action, suits, proceedings, including any arbitration, mediation and/or litigation between the parties, to the extent permitted under this Agreement and arising out of same, shall be filed, initiated, and conducted in in Hamilton County, Indiana. Unless the provisions of this Agreement exclude litigation as a remedy in a dispute by the Parties, it is hereby agreed that any litigation arising out of this Agreement must be filed and litigated in a state or federal court located in in Hamilton County, Indiana. In connection with the foregoing, to the extent that litigation is a permissible method of dispute resolution under this Agreement, each Party hereby consents and submits to the exclusive jurisdiction of those courts for purposes of any such proceeding, and waive any claims or defenses of lack of jurisdiction of, or proper venue by, such court.
You may not transfer or assign, voluntarily or by operation of law, Your obligations under these Conditions or under any Service Agreement of which these Conditions are made a part without Our prior written consent. This Agreement may be assigned by Us (i) pursuant to a merger or change of control of Us, or (ii) to an assignee of all or substantially all of Our assets. Any purported assignment in violation of this section shall be void.
CHANGES TO THESE TERMS AND CONDITIONS
We may update and modify these Conditions at any time by publishing the updated Conditions on this webpage. We will also notify Our clients of any changes to these Conditions by sending an e-mail to the client’s e-mail address on file. You accept that the foregoing constitutes sufficient notice to You of the changes.
If any provision of these Conditions or any Service Agreement of which these Conditions are made a part is declared by any court of competent jurisdiction to be illegal, void, unenforceable or invalid for any reason under applicable law, the remaining parts of this Agreement shall remain in full force and effect, and shall continue to be valid and enforceable. If a court finds that an unenforceable portion of this Agreement may be made enforceable by limiting such provision, then such provision shall be deemed written, construed and enforced as so limited.
Either Party who fails to timely perform their obligations under any Service Agreement of which these Conditions are a part (“Nonperforming Party”) shall be excused from any delay or failure of performance required hereunder if caused by reason of a Force Majeure Event as defined herein, as long as the Nonperforming Party complies with its obligations as set forth below.
For purposes of this clause, “Force Majeure Event” means any event, circumstance, occurrence or contingency, regardless of whether it was foreseeable, which is a) not caused by, and is not within the reasonable control of, the nonperforming Party, and b) prevents the Nonperforming Party from its obligations under the applicable Service Agreement. Such events may include, but are not limited to: acts of war; insurrections; fire; laws, proclamations, edicts, ordinances or regulations; epidemics, pandemics and disease outbreaks; strikes, lock-outs or other labor disputes; riots; explosions; and hurricanes, earthquakes, floods, and other acts of nature.
The obligations and rights of the Nonperforming Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations under the Service Agreement shall resume. In the event that the interruption of the Nonperforming Party’s obligations continues for a period in excess of thirty (30) days, either Party shall have the right to terminate this agreement upon ten (10) days’ prior written notice to the other Party.
Upon occurrence of a Force Majeure Event, the Nonperforming Party shall do all of the following: a) immediately make all reasonable efforts to comply with its obligations under the Service Agreement; b) promptly notify the other Party of the Force Majeure Event; c) advise the other Party of the effect on its performance; d) advise the other Party of the estimated duration of the delay; e) provide the other Party with reasonable updates; and f) use reasonable efforts to limit damages to the other Party and to resume its performance under the Service Agreement.
All provisions that logically ought to survive termination of any Service Agreement of which these Conditions are a part, including but not limited to applicable Limitation of Liability, Indemnity, Choice of Law, Forum Selection, and Confidentiality provisions, shall survive the expiration or termination of this Agreement.
The failure of any Party to insist upon strict compliance with any of the terms, covenants, duties, agreements or conditions set forth in this Agreement, or to exercise any right or remedy arising from a breach thereof, shall not be deemed to constitute waiver of any such terms, covenants, duties, agreements or conditions, or any breach thereof.
If a dispute arises under this Agreement, the Parties hereby agree to first attempt to resolve said dispute by submitting the matter to binding arbitration in Hamilton County, Indiana, in accordance with the rules of the American Arbitration Association, and each Party hereby consents to any such disputes being so resolved. Judgment on the award so rendered in any such arbitration may be entered in any court having jurisdiction thereof.
HEADINGS NOT CONTROLLING
Headings used in these Conditions and any Service Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of any Agreement. Provider reserves the right to revise its policies at any time without notice.