Last Updated Date:  March 17, 2021

 

GENERAL SERVICE AGREEMENT

 

This General Service Agreement (the “Agreement”) is made and entered into between SolvedIT LLC, a California limited liability company (“Company”) and the client (“Client”) that has accepted a quotation from Company or entered into a scope of work with Company (such accepted quotation or scope of work shall hereinafter be referred to as an “Order”), and this Agreement shall govern the Services (as defined herein) provided by Company for Client as referenced herein and in such Order.

 

BY ENTERING INTO AN ORDER, CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN THE ORDER (“ORDER EFFECTIVE DATE”), AGREES TO AND ACCEPTS SUCH TERMS AND CONDITIONS AS OF THE ORDER EFFECTIVE DATE. IF CLIENT IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF CLIENT’S LEGAL ENTITY, CLIENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY.  IF CLIENT DOES NOT AGREE WITH THIS AGREEMENT, CLIENT MUST NOT ENTER INTO THE ORDER.

 

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 16.1, CLIENT AGREES THAT DISPUTES BETWEEN COMPANY AND CLIENT WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND CLIENT WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.

 

1. SERVICES.

1.1       Services under Orders.  Client is engaging Company to provide information technology (“IT”) infrastructure support services, including but not limited to network administration, helpdesk support, endpoint protection, data backup, IT consulting and other related products and services (collectively, the “Services”) as described in Orders entered into under this Agreement, and Client is engaging Company to provide such Services. Neither party will have any obligation with respect to any draft Order unless and until it is agreed upon in writing by both parties.  Except as otherwise provided herein, if any of the terms or conditions of this Agreement conflict with any of the terms or conditions of any Order, the terms or conditions of such Order will control solely with respect to the Services covered under such Order.  Except as expressly set forth in any Order, Company has not provided an estimate for, and is not responsible for, the selection or procurement of any hardware, devices or equipment, operating system software, database software, or other third party software or services, connectivity, data transport, or other intellectual property rights required to perform the Services (collectively, “Third Party Products”). Client is solely responsible for the selection, procurement, costs, and expenses of acquiring the same, and any other infrastructure required to support Client’s use of the Services.  Client acknowledges and agrees that Company is not liable for the performance of any Third Party Products.

1.2       Company Obligations.  Company agrees as follows:  (a) to use reasonable efforts to perform its obligations hereunder, including delivery of the Services, in a timely and professional manner by reasonably qualified personnel consistent with generally acceptable standards of an IT service provider with business and resources similar to Company;  and (b) to properly train, monitor and supervise all employees and other Representatives (as defined in Section 5.2) used hereunder by Company. Client acknowledges and agrees that Company may subcontract any of its obligations hereunder. Any change to Services under this Agreement or any Order must be evidenced by a written agreement. Unless otherwise agreed in an Order, this Agreement excludes the repair, replacement or support to the extent due to (i) the configuration or other changes made by any person other than a Representative of Company, (ii) the use of any systems in any manner other than as contemplated under this Agreement, (iii) inadequate training by Client of its personnel on the use of the Services, (iv) failure by Client to implement Company’s recommendations, (v) modifications or enhancements to the Services made without Company’s written consent, use of versions of operating system software or other products other than those specified by Company, or (vi) the addition of any systems, software or services to the network other than as expressly contemplated per Services. Any services provided outside of the scope of Services set forth herein and/or in the applicable Order shall be provided at Company’s then-current rate for such out-of-scope services and shall be due and payable in accordance with the terms and conditions set forth herein.

1.3       Client Obligations. Client agrees as follows:  (a) to provide a suitable operating environment (including without limitation a suitable electrical power supply) and safe workplace for Company’s Representatives providing Services; (b) to ensure, unless specifically requested by Company, that no person other than Company and its authorized Representatives removes, adjusts, repairs, maintains and/or otherwise interferes with any part of the Services; (c) to ensure that no third party uses the Services other than those third parties with whom Client has a relationship in the ordinary course of its business, and in any event ensuring that any third parties comply with the relevant provisions of this Agreement relating to the Services and their use; (d) to ensure that all software operating within Client’s network or systems has been properly licensed by Client and is maintained in accordance with its documentation; (e) to ensure that its network and systems comply with the relevant specifications provided by Company from time to time and shall provide Company with information as may be required by Company in order to render the Services; (f) to maintain, where required, a full time, dedicated Internet connection and to allow Company access to the Client’s network via that Internet connection, (g) to allow Company and its Representatives access to its facilities and covered equipment in order to perform the Services (including via remote access), (h) to train Client’s employees on all use, operation, backup and recovery procedures, and (i) to provide to Company such information as Company reasonably requires in order to perform its obligations under this Agreement.  Client further agrees that it shall have sole responsibility for understanding and ensuring the Services satisfy any regulatory or legal requirements related to the Services or the network, computer systems and data of Client or any third party on behalf of Client, including any obligations for safeguarding such data and implementing security measures that may be required whether by law, regulation, contract or otherwise. Notwithstanding any recommendation or implementation of any Service by Company, Client understands and agrees that it shall be solely responsible for the final actions, results, audits or deficiencies.

 

2. FEES.

2.1       Fees.  In consideration of the provision of the Services described herein and/or in any Order, Client agrees to pay Company the fees set forth in the Order.  All fees due and payable by the Client to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law and shall be non-refundable unless otherwise determined by Company in its sole and absolute discretion. The fees reflected in such Order shall be in U.S. dollars.  Any services provided outside of the scope of Services set forth herein and/or in the applicable Order shall be provided at Company’s then-current rate for such out-of-scope services and shall be due and payable in accordance with the terms and conditions set forth herein.

2.2       Taxes.  All fees due and payable under this Agreement are exclusive of taxes, which will be added at the prevailing rate from time to time.

2.3       Expenses.  Fees for any Third Party Products purchased by Company on Client’s behalf, reasonable travel and out-of-pocket expenses are not included in the fees set forth in the relevant Orders and will be invoiced separately.

2.4       Invoices. Unless otherwise set forth herein or in the applicable Order, Company will provide Client with an invoice for fees that become due hereunder and such invoices shall be due and payable by Client upon receipt of such invoice.  Invoices submitted by Company to Client are deemed accepted and approved unless disputed by Client in good faith in accordance with Section 2.7 below.

2.5       Payment Account.  Unless otherwise set forth in an Order, all fees shall be deducted from a payment account designated by Client, or paid by check, as mutually agreed by the parties. Client authorizes Company to automatically charge the payment account for the fees (plus applicable sales tax) agreed to by the parties in writing without any further authorization from Client.  In the event Client elects to proceed with a credit card payment, Client’s credit card will be debited in the manner authorized for the amount of the payment to Company, and Company will apply an additional non-refundable convenience fee in an amount equal to three percent (3%) of the fees due under such invoice.   Client acknowledges that the authorization will remain in effect until Client cancels such authorization by providing written notice to Company.  If Client’s payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Client shall immediately update Client’s payment account or supply a new payment account, as appropriate.  If Client is unable to update its payment account with appropriate information, then Company will send an invoice to Client detailing the amount due.  Client must pay the amount due in full within seven (7) days after the date of the invoice. Client agrees to notify Company in writing of any changes to Client’s account information or termination of its authorization at least thirty (30) days prior to the next billing date. In the event payment dates fall on a weekend or holiday, Client understands that the payments may be executed on the next business day. Client hereby agrees to undertake any and all required actions, execute any required documents, instruments or agreements, or to otherwise do any other thing required or requested by Company in order to effectuate the requirements of this Section 2.5.

2.6       Late Payments.  In the event payment of fees is not made on or before the date such payments are due, Company may, in its sole discretion, suspend Services until payment is made in full without incurring any liability.  Company will give Client ten (10) days’ prior notice of its intention to exercise its rights to suspend Services under this Section 2.6.  If Client does not make payment on or before thirty (30) days from the date on which such payment is due to be paid, Company reserves the right, in its sole and absolute discretion, to apply interest calculated at a monthly rate of 1.5% (but with interest accruing on a daily basis) or the highest rate permitted by law.  Such interest shall accrue from the date upon which payment of such sum became due until payment thereof is made in full together with such interest.

2.7.      Invoice Dispute Process.  

(a)     If Client has a bona fide dispute in relation to any portion of the fees invoiced, Client must pay all invoiced fees and shall provide notice to Company in writing within ten (10) days from the date of the invoice.  Such notice shall set forth the details surrounding the dispute.  The parties shall discuss the disputed fees within ten (10) calendar days of the date of the notice. If the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to arbitration as set forth in Article 16 herein.

(b)     When the dispute is resolved, (i) if an amount is owed to Client, Company, in its sole discretion, shall credit such amount to Client’s account within twenty (20) calendar days after the resolution of such dispute or (ii) if payment is owed to Company, such payment shall be made within five (5) calendar days of the resolution of such dispute (or within such other timeframe as mutually agreed to by the parties in writing).

(c)     For avoidance of doubt, all negotiations pursuant to this Section 2.7 shall be treated as confidential compromise and settlement negotiations.  Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.

(d)    Client waives the right to dispute any fees not disputed within ten (10) days of the date of the applicable invoice.

 

3. TERM.

This Agreement is effective as of the applicable Order Effective Date and will continue until terminated in accordance with Article 4.  The Services will commence on the date set forth in the Order and shall remain in effect until terminated by either party, or as otherwise set forth in the Order.

 

4. TERMINATION.

4.1       Termination for Breach.  If a party materially breaches this Agreement and/or any Order (the “Defaulting Party”), and the Defaulting Party does not cure such breach within 30 days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the relevant Order upon written notice to the Defaulting Party.  Termination of an Order and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.

4.2       Termination for Convenience.  Unless otherwise set forth in the applicable Order, Client may terminate this Agreement for convenience only at the end of the then-current Order term by providing 30 days’ written notice to Company prior to the expiration of such term.  Company may terminate this Agreement and/or any Order hereunder for convenience at any time upon written notice to Client.

4.3       Termination for Insolvency.  Either party may terminate this Agreement and Order Form(s) in the event the other party becomes Insolvent.  For purposes of this Section 4.3, “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within sixty (60) days thereafter.

4.4       Effect of Termination.  Upon termination of this Agreement and/or an Order, (a) Client will pay all outstanding fees, charges, and expenses incurred through the effective date of termination, and (b) Company will cease providing Services; provided, however, that upon Client’s request, Company may work with Client to ensure a smooth transition of Services to Client or a third party as mutually agreed to by the parties in writing at Company’s then-current rates.

 

5. CONFIDENTIALITY.

5.1       Confidential Information.  “Confidential Information” includes all information related to the business of one party (“Disclosing Party”) and any of its affiliates, clients and other third parties, to which the other party (“Receiving Party”) has access, whether in oral, written, graphic or machine-readable form, in the course of or in connection with the Services, including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, personally identifiable customer or employee information, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement.  The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”

5.2       Representatives.  The Receiving Party will keep the Confidential Information confidential, and may disclose the Confidential Information to its officers, directors, employees, agents, suppliers and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement.  The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement.  The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written permission and without such third party having a contractual obligation (consistent with this Article 5) to keep such Confidential Information confidential.  The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.

5.3       Exclusions.  Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party prior to its receipt from the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.

5.4       Legal Requirements.  If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.  If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.

5.5       Disclosure.  In the event that the Receiving Party learns or has reason to believe that Confidential Information has been disclosed or accessed by an unauthorized party, the Receiving Party will immediately give notice of such event to the Disclosing Party.

5.6       Disposition of Confidential Information on Termination.  Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control.  Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.

5.7       Equitable Relief.  Each party acknowledges that a breach of this Article 5 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.

 

6. INTELLECTUAL PROPERTY; CLIENT CONTENT.

6.1       Intellectual Property.  “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights.

6.2       Company Trademarks; Ownership.

1. Company retains all right, title and interest in and to all trademarks, service marks, and trade names owned or licensed by Company, and no right, title or interest in or to Company’s trademarks, service marks, or trade names is granted to Client hereunder. All uses of Company’s trademarks, service marks, or trade names shall inure solely to the benefit of Company or its licensors.
2. Unless otherwise set forth in an Order, Company retains all right, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials provided or made available to Client by Company hereunder. Except for the rights expressly granted to Client in this Agreement, all such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all IP rights pertaining thereto, are and shall remain the property of Company and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Client, Client hereby assigns such ownership rights to Company).  Company confirms that it has all the rights necessary to provide the Services described herein and has the ability to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

6.3       Client Content.  “Client Content” means any elements of text, graphics, images, photos, designs, artwork, logos, trademarks, service marks, data, software, and other information, materials and/or content which Client provides in connection with the Services.  Client Content excludes any content available in the public domain; and any content owned or licensed by Company, whether in connection with providing Services or otherwise.  Client hereby grants Company a worldwide, non-exclusive right and license to reproduce, distribute and display the Client Content solely as necessary to provide the Services.  Client represents to Company and guarantees that all Client Content is owned by Client, or that Client has permission from the rightful owner to use each of the elements of Client Content; and that Client has all rights necessary for Company to use the Client Content in connection with the Services. Client and its licensors retain title, all ownership rights, and all IP rights, in and to the Client Content, and reserve all rights not expressly granted to Company hereunder. Company has no knowledge of the value of Client Content or of the financial or other consequences of the Client Content being lost or not properly processed and/or transmitted and it is Client’s responsibility to store and back-up at all relevant times and whenever possible and keep a permanent record of such Client Content processed and/or transmitted via any network.

 

7. Representations, Warranties AND COVENANTS.

7.1       Client Warranties.  Client represents, warrants and covenants that (a) Client is a duly organized, validly existing and in good standing under the laws of its state of organization; (b) Client has the power and authority to enter into this Agreement and Orders; (c) Client has not and will not enter into any agreement or perform any act which might contravene the purposes and/or effects of this Agreement; (d) Client has notified Company in writing of any minimum standards, requirements, methods, policies, procedures or other activities for which Client expects Company to perform any Services hereunder (“Required Standards”), which shall be set forth in particular detail in the applicable Order, and that Client shall promptly notify Company in writing (i) to the extent any such Required Standards change, or (ii) in the event Client or its Representatives suspect the Services hereunder are not meeting such Required Standards; (e)  Client has not obtained cyber security insurance, and agrees to notify Company in the event Client elects to procure cyber insurance coverage, including notice of any related Required Standards, copies of any application for such coverage (before and after submission for coverage), obtaining a waiver of subrogation in form and substance satisfactory to Company, and otherwise providing such information related thereto as Company may reasonably request.

7.2       Company Warranties.  Company represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of its state of organization; and (ii) has the power and authority to enter into this Agreement and the Orders.  In the event that Client requests that Company purchase any Third Party Products on behalf of Client, Company shall pass through to Client any warranties associated with such Third Party Products.

7.3       Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY.  THE SERVICES AND ANY MATERIALS ARE PROVIDED BY COMPANY ON AN “AS-IS” BASIS.  COMPANY DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY COMPANY ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE OR CONTINUOUSLY AVAILABLE, OR THAT THEY WILL MEET CLIENT’S REQUIREMENTS.  COMPANY DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY) WILL BE CORRECTED. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES AND/OR OTHER LOSS AND/OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS AND/OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.

 

8. Indemnification.

Client shall indemnify, defend and hold harmless Company and its Representatives from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees (“Claims”) arising out of, and/or relating to (a) Client’s and/or its Representatives’ acts and/or omissions; (b) any Client Content that constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party; (c) Client’s and/or its Representatives’ breach of the terms of this Agreement and/or any Order; and/or (d) Client’s and/or its Representatives’ failure to use the Services in accordance with the terms and conditions set forth herein and in the applicable Order. Company shall give notice to Client of any Claim promptly upon becoming aware of the same and shall reasonably cooperate with Client.  Company may participate in such defense, at its sole expense.

 

9. LIMITATION OF LIABILITY.

COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY ORDER SHALL IN NO EVENT EXCEED THE LESSER OF (I) THE FEES PAID BY CLIENT TO COMPANY UNDER THE APPLICABLE ORDER THAT GAVE RISE TO SUCH CLAIM IN THE SIX MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, OR (II) THE SUM OF $6,000, WHETHER ANY SUCH LIABILITY ARISES FROM CLAIMS IN CONTRACT, TORT OR ANY OTHERWISE. IN NO EVENT SHALL COMPANY OR ITS REPRESENTATIVES (A) BE RESPONSIBLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING FROM THE SERVICES OR RELATED PRODUCTS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIRD PARTY PRODUCTS, INCLUDING ANY THIRD PARTY SOFTWARE, HARDWARE, SERVICES OR OTHER MATERIALS, (C) HAVE ANY LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND ARISING FROM VIRUSES, HACKERS, INTRUSIONS, MALWARE OF ANY KIND OR ACCIDENTAL DESTRUCTION OF SYSTEMS, DEVICES OR DATA, OR (D) HAVE ANY LIABILITY FOR ANY LOSS OR DAMAGES OF ANY KIND WHICH COULD REASONABLY BE EXPECTED TO HAVE ARISEN, DIRECTLY OR INDIRECTLY, FROM THE ACTIVITIES OF CLIENT OR ITS REPRESENTATIVES IN CONTRAVENTION OF ANY RECOMMENDATIONS, CUSTOMARY BEST PRACTICES, POLICIES OR OTHER GUIDANCE PROVIDED IN CONNECTION WITH THE SERVICES.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (INCLUDING ANY SPECIFIED SERVICES), CLIENT EXPRESSLY ASSUMES ALL RISK OF PHYSICAL DAMAGE OR DATA LOSS ASSOCIATED WITH ANY SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS WHICH MAY ARISE BY ALLOWING COMPANY AND ITS REPRESENTATIVES TO HAVE ACCESS TO THE NETWORK AND COMPUTER SYSTEMS OF CLIENT OR OTHERWISE IN CONNECTION WITH THE SERVICES (INCLUDING VIA REMOTE MANAGEMENT).

 

10. FORCE MAJEURE.

In no event shall Company be liable to Client, its Representatives or any other person or entity for failure to deliver the Services where such failure is due to fire, strike, labor trouble, war, loss of power, act of God, terrorism, cyber-terrorism, epidemic, pandemic, widespread Internet instability, inability to obtain Internet access, inability to obtain raw materials, laws or regulations of any governmental authority, incorrect, delayed or incomplete information provided to Company or any other cause or condition beyond Company’s reasonable control (a “Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue; it being understood that Company shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances. Either party may terminate this Agreement by giving the other party written notice if Company is unable to perform its obligations for three (3) months due to such Force Majeure Event.

 

11. Independent Contractor.

Company is an independent contractor and will determine the method, details and means of performing the Services.  No party shall have the authority to bind, represent or commit the other.  Nothing in this Agreement shall be deemed or construed to create a joint venture or agency relationship between the parties for any purpose.  Nothing contained herein shall give or is intended to give any rights of any kind to any third persons.

 

12. Governing Law and Choice of Forum.

This Agreement will be governed by, and construed in accordance with, the internal laws of the State of California, without regard to its choice of laws principles.  Any action related to and/or arising from this Agreement shall take place exclusively in Riverside County, California and the parties hereby submit to such venue.

 

13. Non-Solicitation.

Client shall not, during the term of this Agreement and for a period of one (1) year thereafter, either directly or indirectly, recruit or otherwise solicit or induce, or enter into or participate in any plan or arrangement to cause, any person who is an employee of, or otherwise performing services for, Company, to terminate his or her employment or other relationship with Company, either for Client’s own benefit or for the benefit of any other person, firm, corporation or organization.  For avoidance of doubt, this Section does not apply to Company‘s employees who respond to public advertisements.

 

14. Assignment.

Client may not assign this Agreement, by Change of Control or otherwise, without the prior written consent of Company.  “Change of Control” means the direct or indirect change in the ownership, operation or control of a party, whether resulting from merger, acquisition (including an acquisition of substantially all of the assets of a party), consolidation or otherwise.  No such assignment or transfer shall have the effect of increasing the obligations of either party under this Agreement.  This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.

 

15. Notices.

All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.

 

16. General.

16.1     Arbitration.  Unless otherwise set forth in this Agreement, the parties agree that as to any dispute arising out of or under this Agreement, the parties shall meet to discuss such dispute for resolution within thirty (30) days.   If the parties are unable to resolve the dispute, then the parties may bring an action pursuant which shall be settled by binding arbitration.  The arbitration proceedings shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time a demand for arbitration.  The decision of the arbitrators, including determination of the amount of damages suffered, if any, shall be final and binding on all parties, their executors, administrators, successors and assigns and judgment with respect to such decision may be entered in any court of applicable jurisdiction.  Each party shall bear its own expenses in the arbitration, for attorneys’ fees, and for fees with respect to its witnesses; provided that, the prevailing party will be entitled to recover such fees in accordance with Section 16.8 herein.  Other arbitration costs, including arbitrators’ fees and administrative fees, and fees for records or transcripts, shall be paid equally by the parties.  The location of such arbitration shall be in Riverside County, California.

16.2     No Waiver by Conduct.  No waiver of any of the terms of this Agreement or any Order Form will be valid unless in writing and designated as such.  Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence.

16.3     No Third-Party Beneficiaries.  Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement.  Client agrees that Company’s obligations in this Agreement are to Client only, and Company has no obligation to any third party (including, without limitation, Client’s personnel, directors, officers, employees and any administrative authorities).

16.4     Severability.  If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.

16.5     Method of Amendment.  Each Order and any amendments thereto shall be agreed upon in writing by an authorized representative of each party.  The parties may transmit Orders by fax, electronic and/or computer image.  Notwithstanding anything herein to the contrary, Company may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Client’s execution of a new or additional Order in which the new terms of this Agreement will be incorporated.  Company will post the updated Agreement on the “last updated” date listed above.

16.6     Headings.  The headings and titles of the paragraphs of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.

16.7     Survival.  Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.

16.8     Attorney Fees.  Notwithstanding anything herein to the contrary, if either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys’ fees) incurred in connection with the action.

16.9     No Primary Drafter.  The parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such party or its professional advisor was the drafter, but shall be construed according to the intent of the parties as evidenced by the entire Agreement.

16.10   Publicity.  Notwithstanding anything herein to the contrary, Client acknowledges and agrees that Company may use Client as a reference for prospective clients, refer to Client in generic client lists and/or use Client’s reviews of Company and/or its Services in its marketing materials, brochures and/or website.

16.11   Entire Agreement.  This Agreement, including all Orders, exhibits and referenced documents constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.

16.12   Electronic Signature.  Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included with the applicable Order are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of the Order or any other document contemplated hereby bearing an original or electronic signature by facsimile transmission, by electronic mail in portable document format (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original or electronic signature.

 

 

 

 

 

 

 

 

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