NOW, THEREFORE, in consideration of the terms, conditions, representations and limitations set forth in this Agreement, the Customer hereby engages Tech Strategies, Inc. (Service Provider) to provide the hereafter designated services.
For the services Customer hereby engages Service Provider to provide the particular services (“Designated Services”) designated on the Services Order Form (the “Order Form”) and can be reviewed and found in Customers "client portal". Service Provider shall have no duty or obligation to perform services not designated in the Order Form. In the event Customer desires to engage Service Provider to provide services in addition to the Designated Services or extend Service Provider’s performance of the Designated Services, Customer and Service Provider shall enter into another agreement separate and distinct from this Agreement.
2. Term & Termination
The term of this Agreement shall be for an initial twelve (12) consecutive months (“initial period”) from the Effective Date, unless otherwise terminated as herein provided. After the initial 12 consecutive months contract terms shall renew for an additional 12 consecutive months, unless specified on the order form. Upon termination of this Agreement, all Service Provider’s duties, obligations and liability under the Agreement and associated to the Designated Services shall cease and be released by Customer.
At the end of the twelve (12) month contract both parties have the right to cancel this contract anytime by giving the other party thirty (30) days written notice of termination. In the event that one party is not fulfilling its obligation outlined in this Agreement the other party has the right to serve a written complaint. The failing party is given then twenty (20) days to resolve the issue(s). If the failing party cannot resolve the issue(s) within these twenty (20) days the other party has the right to cancel this contract even before the end of the initial period by giving the other party twenty (20) days written notice of termination. Within thirty (30) days of written notice of termination of this Agreement, Customer shall pay to Service Provider all outstanding charges for Designated Services performed by Service Provider through the date of termination. Upon termination of this Agreement all Service Provider’s duties, obligations and liability under the Agreement and associated to the Designated Services shall cease and be released by Customer.
Unless otherwise provided in section 3.1.3, herein below, Customer shall pay to Service Provider the invoiced amount for the Designated Services in the Order Form, pursuant to Service Provider’s fee schedule. Customer acknowledges it has received Service Provider’s fee schedule in conjunction with the Order Form. Service Provider reserves the right to amend the fee schedule, from time to time, by providing to Customer thirty (30) days written notice to Customer. Customer may reject Service Provider’s amendment to its fee schedule by providing to Service Provider thirty (30) days written notice of its rejection. In the event Service Provider and Customer are unable to resolve Customer’s rejection of Service Provider’s amendment to its fee schedule within ten (10) days of Customer’s notice of its rejection, Customer may terminate and cancel this Agreement by giving Service Provider ten (10) days written notice of termination. Within thirty (30) days of Customer’s notice of termination of this Agreement, Customer shall pay to Service Provider all outstanding charges for Designated Services performed by Service Provider through the date of termination. Upon Customer’s termination of this Agreement all Service Provider’s duties, obligations and liability under the Agreement and associated to the Designated Services shall cease and be released by Customer.
Service Provider will, unless otherwise specified in section 3.1.3, invoice Customer on a periodic basis and all payments shall be due and payable within thirty (30) days of the date of the invoice. A FINANCE CHARGE of 1½% per month shall accrue on unpaid invoiced amounts after thirty (30) days of the date of the invoice. The finance charge is an ANNUAL PERCENTAGE RATE of 18%. Service shall be discontinued on unpaid invoices after forty-five (45) days of the date of the invoice.
Service Provider may provide Customer a discount to the fee amount provided in Service Provider’s fee schedule in consideration of Customer’s selection of comprehensive services and/or contract term on the Order Form as Designated Services.
4. Service Availability
Uptime. For cloud based and hosted services, Service Provider shall provide at least 99.9% Service Availability with reasonable bandwidth, measured on a per calendar month basis. Unavailability caused by issues beyond Service Provider’s reasonable control, including denial of service or similar attacks, mail bombs, DNS resolution, Domain Name expiration, Customer’s Internet availability, SYN attacks, and other events or any other Force Majeure event will be excluded from Service Availability calculations.
Credit for Non-ComplianceIf Service Availability for the first 30 day period (or any calendar month thereafter) is below 99.9%, Service Provider will issue a credit to Customer according to the schedule below:
Amount of the refund as a percentage of monthly fee for affected Service
99.0% to 99.89%
5% of monthly fee credited
98.0% to 98.99%
10% of monthly fee credited
95.0% to 97.99%
25% of monthly fee credited
90.0% to 94.9%
50% of monthly fee credited
89.9% or below
5% credited for every 1% of lost availability up to 100% of monthly fee
To receive a credit, Customer’s account must (a) be in good standing with Service Provider, and (b) send a written credit request to Service Provider in the month immediately following the month for which Customer is seeking a credit. Credit requests must include the dates and specific times that the Service Availability was below the prescribed levels.
Service Provider will compare information provided by Customer to the monitoring data Service Provider maintains. A credit is issued only if Service Provider confirms from the monitoring data warranting the credit.
5. MaintenanceScheduled Maintenance.
To ensure optimal performance and security of the Designated Services, Service Provider will routinely perform maintenance on a regularly scheduled basis within its maintenance windows. This may require specific Designated Services to be suspended during the maintenance period. Designated Service unavailability due to scheduled maintenance will be excluded from Service Availability calculations. Service Provider will use commercially reasonable efforts to notify Customer in advance of any scheduled maintenance that may adversely affect Customer’s Designated Services.
Under certain circumstances Service Provider may need to perform emergency maintenance, such as security patch installation or hardware replacement. Service Provider will not be able to provide Customer with advanced notice in case of an emergency maintenance. Service Provider will use reasonable efforts to perform such emergency maintenance during its maintenance window. Designated Services unavailability due to emergency maintenance will be excluded from Server Availability calculations as long as it does not exceed four (4) hours in any given calendar month.
Service Providers Hardware Replacement.
For hosted/cloud services the Service Provider will use industry standard practices to determine whether Service Provider's server hardware is functioning properly and will replace non-functioning hardware with similarly or better functioning hardware. Service Provider shall use commercially reasonable efforts to implement hardware replacement within eight (8) hours from the time the problem is identified. Service Provider will use reasonable efforts to perform such hardware replacement during its maintenance window. Designated Services unavailability due to hardware replacement will be excluded from Server Availability calculations as long as it does not exceed eight (8) hours in any given calendar month.
Customer Owned Hardware.
Customer is expected to maintain or work with Service Provider to utilize equipment and hardware that is regularly maintained and updated. Customer will replace customer owned equipment at Customer's expense when required to correctly operate and utilize Service Provider's services.
The scheduled maintenance windows have been set as follows: Monday to Sunday; between twelve (11) PM and six (6) AM Mountain Standard Time and/or Friday to Sunday between ten (10) PM and Midnight Mountain Standard Time.
For purposes of this Agreement, the term "Information" shall mean any information that Provider may receive from Client pursuant to this Agreement where such information (a) if Provider receives it in written form, is marked “Confidential” and (b) if Provider does not receive it in written form, is declared by Client in writing to be confidential within thirty (30) days after disclosure.
Provider shall maintain the Information in confidence with the same degree of care it holds its own confidential information. Provider shall not use the Information except to perform the Services. Provider will disclose the Information only to its officers and employees directly concerned with the Statements of Work, but will neither disclose the Information to any third party nor use the Information for any other purpose.
Provider's obligation of nondisclosure and the limitations upon the right to use the Information shall not apply to the extent that Provider can demonstrate that the Information: (a) was in the possession of Provider prior to the time of disclosure; or (b) is or becomes public knowledge through no fault or omission of Provider; or (c) is obtained by Provider from a third party under no obligation of confidentiality to Client. All Information will be returned or, in the case of the Statements of Work, delivered to Client upon termination of this Business Contract for any reason, except for one copy, which Provider may use for the sole purpose of determining its continuing confidentiality obligation to Client under this Agreement.
All obligations of Provider under this Section shall survive the termination of this Agreement for a period of five (5) years.
7. Intellectual Property
Client will retain ownership of any data, information or intellectual property furnished to Provider in connection with this Agreement. Client will own any intellectual property that results from the Services, including without limitation software (in both machine-readable form and in source code form), data, and other information, excluding any intellectual property generated by Provider in performing the Services that relates solely to Provider’s business, which shall be the property of Provider; provided that Client shall have the right to use such Provider intellectual property in accordance with the following license terms:Client may use Provider Intellectual Property solely in connection with the services, for the purpose for which those products were originally purchased.
Client may not transfer, sell, or otherwise dispose of any Provider Proprietary Items without the prior written consent of Provider.
This license gives no title or ownership rights in Provider Intellectual Property or related intellectual property to Client.
If software source code is delivered to Client under this license, Client agrees to keep the source code strictly confidential. If software object code is delivered, Client will not copy or modify the software or subject the software to any process intended to create computer source code from Provider Intellectual Property.
Client agrees to retain or reproduce on all copies of any Provider Intellectual Property all copyright notices and other proprietary legends and all trademarks or service marks of Provider.
Client will have no rights to assign or sell the license granted herein to others.
Separate licensing agreements will be negotiated for any of Provider’s commercial off-the-shelf type products, if such items are ordered by Client.
8. Limited Representations and Disclaimer of Warranties
Representations. Service Provider represents to Customer that qualified personnel will perform the Designated Services in a professional workmanlike manner, and in conformance with generally accepted industry standards and practices; however, Service Provider does not warrant, and expressly disclaims any warranty, that Service Provider’s performance of the Designated Services will be free of errors.
Limitation of Liability and Remedies. Customer agrees that its sole and exclusive remedy against Service Provider, under this Agreement, shall be Service Provider’s refund of the charges billed and/or paid for Designated Services. Service Provider shall have no liability to Customer for any interruption of business, loss of business, destruction or loss of data, fines, costs and expenses associated to or arising from violation or alleged violation of governmental rules and regulations, or consequential damages.
WARRANTY LIMITATIONS. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, TO CUSTOMER, ANY OF ITS AFFILIATES OR ANY OTHER PARTY WITH RESPECT TO THE DESIGNATED SERVICES OR OTHERWISE UNDER THIS AGREEMENT, OR IN THE PERFORMANCE OF THE DESIGNATED SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED AND DISCLAIMED
9. General Provisions
None of the provisions of this Agreement are intended to create, nor shall be deemed to constitute or create, any relationship between the parties hereto other than that of independent entities contracting with each other solely for the purposes of effecting the provisions of this Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement.
Modifications to Agreement.
This Agreement may be modified, amended or added to only by written agreement acknowledged by Customer and Service Provider. Customer acknowledges that modifications, amendments and additions to this Agreement may increase Service Provider’s charges for Designated Services rendered.
Force Majeure. Neither Service Provider nor Customer shall be liable for failure to perform any of its respective obligations hereunder if such failure is caused by an event force majeure, including but not limited to, instructions of any governmental authority that delay or restrict performance hereunder, an act of God, terrorism, war, natural disaster, or other similar event of force majeure.
No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
All notices required or permitted hereunder shall be in writing and, except as specifically provided in this Agreement, shall be deemed to have been duly given upon personal delivery, or seventy-two (72) hours following traceable deposit with United States Mail, FedEx, UPS or similar courier services or following transmission by electronic facsimile, if subsequently mailed as provided herein to:If to Service Provider: Tech Strategies, Inc, 608 Thurman Ave, Filer, ID 83328
Both parties are required to notify the other party in writing of any address and/or phone/fax number changes within thirty (30) days of such change.
Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Idaho, without regard to its rules regarding conflict of laws.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules including the Optional Rules for Emergency Measures of Protection, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Entire Agreement. This Agreement: (i) represents the entire understanding between the parties hereto with respect to the subject matter set forth herein, and (ii) supersedes all prior and contemporaneous negotiations, agreements, contracts, commitments, and understandings, both verbal and written between Service Provider and Customer.
If any dispute arising out of this Agreement is litigated between the parties, the prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees in addition to any other relief to which it may be entitled.
In the event of any discrepancies between this Agreement and an Order Form, this Agreement shall prevail over the Order Form(s) unless the Order Form(s) specifically states that it is intended to prevail over the terms of this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
Online Order Form.
In the event that no signed contract is available, registering with service provider online and payment of invoices will serve as confirmation of agreement of both service provider and customer.