This Services Agreement is a contract between techiest Inc., a Florida Corporation (“Service Provider” or “Provider”) with offices located at 13031 McGregor Blvd, Suite 15, Fort Myers, Florida 33919, and you. The Customer and Service Provider are sometimes collectively referred to herein as the “Parties” and individually as a “Party”.
Customer wishes to be provided with the Services (as defined below) by Service Provider and the Service Provider agrees to provide the Services to the Customer in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
- Service Provider will perform certain services and create and provide certain deliverables, as more particularly described in Statements of Work (each an SOW and collectively SOWs) which will be entered into from time to time and, upon execution by the Parties, will be incorporated and made part of this Agreement (the “Services”). Prior to commencement of the Services an SOW will be prepared, in the form attached hereto as Exhibit A (which is only provided as an example). In the event of a conflict between the terms of an SOW and the terms of this Agreement, the terms of the SOW shall supersede and control. No obligation to either provide or pay for any Services shall be incurred by either Party until such time that an SOW has been executed by representatives of both Parties. The existence of this Agreement shall not be construed as imposing any obligation upon the Service Provider to agree to an SOW or to otherwise perform any Services for the Customer.
- During the term of the Agreement, the Parties may, but shall not be required to, modify the Services and/or agree upon additional Services that the Service Provider will provide to the Customer. If the Parties mutually agree to modify and/or add any Services beyond those set forth in this Agreement, the Parties will prepare and execute an amendment to the Statement of Work to provide for such additional or modified Services. Such additional or modified Services shall be provided under the terms and conditions and for the same rate of compensation as provided for in this Agreement, unless different terms for such additional or modified Services are agreed to and are expressly set forth in the amendment. Any amendment with respect to additional Services shall set forth a description of the additional Services, the term during which such Services will be provided, the cost for such Services, etc.
- Customer acknowledges and agrees that Service Provider may use subcontractors and consultants to perform some of the Services to be provided under this Agreement. In the event Service Provider utilizes subcontractors or consultants to perform any of the Services, Service Provider shall remain responsible to Customer for performance under this Agreement.
- Fees and Expenses
- Fees. As full and complete compensation for performing all Services specified in this Agreement and for assuming all duties, responsibilities, and obligations required by this Agreement, Customer will compensate Service Provider for all fees (the “Fees”) actually incurred in accordance with (i) the terms of this Agreement and in any SOW entered into by the Parties; (ii) subscription fee; and (ii) the fixed hourly rates set forth in the Services Provider Personnel Rate Sheet attached to any SOW. Service Provider may increase the Fee charges for the Services by providing the Client with at least 30 days written notice of such increases. Rates are exclusive of taxes, levies, duties, governmental charges and expenses (with the exception of any Service Provider’s income taxes), which amounts will be billed to and paid by Customer.
- Expenses. Customer shall pay Service Provider for the reasonable expenses including, but not limited to, out of pocket travel and living expenses, incurred by Service Provider and its personnel in connection with its performance of the Services (the “Expenses”).
- Billing and Payment. Customer will pay all fees specified in SOW. Except as otherwise specified herein or in the SOW, (i) fees are based on Services and Subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) early termination of any subscription service will result in payment of the entire subscription term within 30 days, unless the Customer continues to provide payment as provided for in the SOW until the end of the term listed in the SOW.
- Invoice and Payment. Customer shall provide Service Provider with valid and updated credit card information, or with a SOW, a credit card or ACH authorization form acceptable to the Service Provider. Customer authorizes the Service Provider to charge such credit card or initiate direct debit via ACH for all Services listed in the SOW for their initial subscription term and any renewal subscription term(s) as set forth in the SOW. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable SOW. If the SOW specifies that payment will be by a method other than a credit card, Service Provider will invoice Customer in advance and otherwise in accordance with the relevant SOW. Unless otherwise stated in the SOW, invoiced fees are due net-14 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Service Provider and notifying Service Provider of any changes to such information.
- Overdue Charges. If any invoiced amount is not received by Service Provider by the due date, then without limiting Service Provider’s rights or remedies, those charges may accrue late interest a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
- Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 5 or more days overdue in the case of amounts Customer has authorized Service Provider to charge to Customer’s credit card or ACH direct debit), Service Provider may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under the Agreement so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payments have been declined, Service provider will give Customer at least 5 days’ prior notice that its account is overdue, before suspending service to customer.
- Payment Dispute. Service Provider will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above for a period of 30 days, if Customer is disputing the applicable charges reasonably, provides payment of at least 50% of the disputed payment amount owed to Service provider, and acts in good faith and cooperates diligently to resolve the dispute.
- Compliance with Laws; Permits and Licenses. It shall be the responsibility of the Customer to pay for any necessary third party licenses, permits, and approvals as may be necessary for the performance of the Services under this Agreement, unless otherwise specified in writing and agreed to by the Service Provider.
- Warranty. The Services to be performed hereunder are in the nature of managed technology services. Service Provider does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. Service Provider shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 3? IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. SERVICE PROVIDER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO THE CUSTOMER BY THE SERVICE PROVIDER DURING THE TERM OF THIS AGREEMENT, PURSUANT TO ANY SOW OR OTHERWISE, EXCEPT IF SUCH THIRD-PARTY SERVICES ARE PROVIDED UNDER WRITTEN AGREEMENT WITH SERVICE PROVIDER. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
- Ownership of Work Product. This is not a work-for-hire agreement. The copyright in all deliverables created hereunder for Customer shall belong to the Service Provider. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of the Services hereunder are and shall remain the sole and absolute property of Service Provider, subject to a worldwide, non-exclusive license to Customer for its internal use as intended under this Agreement. This Agreement does not grant Customer any license to any of the Service Provider’s products, which products must be licensed separately.
- Confidential Information. The Parties acknowledge that for the purpose of the performance of this Agreement and the provision of the Services hereunder, one Party may disclose to the other confidential and/or sensitive information (“Confidential Information”). The Party disclosing information is referred to as the “Disclosing Party” and the Party receiving information as the “Receiving Party.” For the purpose of this Agreement, “Confidential Information” shall mean all information disclosed by the Disclosing Party to the Receiving Party during the Term of this Agreement which is non-public and either proprietary or confidential in nature and related to the Disclosing Party’s business or activities, including, but not limited to financial, legal, technical, marketing, sales and business information, which is (a) marked as confidential at the time of disclosure; or (b) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (c) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to only its employees, subcontractors, consultants and representatives who have a need to know such information to fulfill the transactions between the Parties contemplated by this Agreement. The term of confidentiality shall be 5 years from the initial date of disclosure of the Confidential Information. These confidentiality obligations shall not apply to any information or development which: (i) is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) is already known to the receiving party before disclosure by the other party; (iii) is developed through the independent efforts of the receiving party; or (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
- Indemnification. Each Party (the “Indemnifying Party”) will indemnify, defend, and hold the other Party, its officers, directors, employees, and/or shareholders, harmless from any final court judgment (or settlement to which the parties have agreed) arising from personal injury or tangible property damage which is determined by a court to be caused by the gross negligence, willful misconduct or fraud of the Indemnifying Party or its authorized employees and personnel relating to this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents contributed to such liability.
- LIMITATION OF LIABILITY; ACTIONS. EXCEPT FOR THE PARTIES CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5? OF THIS AGREEMENT AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 6? OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUBJECT TO THE CUSTOMER’S OBLIGATION TO PAY THE FEES TO THE SERVICE PROVIDER, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CUSTOMER TO THE SERVICE PROVIDER UNDER THIS AGREEMENT IN THE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
- Cooperation of Customer. Customer agrees to comply with all reasonable requests of Service Provider and shall provide Service Provider’s personnel with access to all documents, necessary computer hardware, software, related materials and facilities as may be reasonably necessary for the performance of the Services under this Agreement. Customer will also provide Service Provider with access to all information, passwords and facilities requested by Service Provider that is necessary for Service Provider to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Customer understands that the PROVIDER may be unable to perform their duties adequately and if such a situation should exist, the Service Provider will be held harmless. Customer agrees to furnish without charge adequate space at Customer’s premises for use by Service Provider’s personnel while performing the Services. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Customer shall bear the risk of loss of any Equipment located at Customer’s facility.
- Customer Responsibility for Equipment. Customer acknowledges that from time to time (a) Service Provider may identify additional items that need to be purchased by Customer, and (b) changes in Customer’s systems may be required in order for Service Provider to meet Customer’s requirements. In connection therewith, Customer agrees to work in good faith with Service Provider to effectuate such purchases or changes. In the event that Service Provider is required to purchase any assets, including computer hardware and/or software, in connection with Service Provider providing the services, all such assets will remain the sole property of Service Provider unless specifically stated otherwise in writing. Customer will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to Service Provider do not infringe or violate the rights of any third party. Customer will maintain adequate backup for all data and other items furnished to Service Provider. It is the Customers responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to Service Provider’s products or services and Service Provider disclaims all responsibility for any loss including data.
- Customer Data Ownership and Responsibility. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Customer to Service Provider.
- Software Installation or Replication. If Service Provider is required to install or replicate Customer software as part of the Services, Customer will independently verify that all such software is properly licensed. Customer’s act of providing any software to Service Provider will be deemed Customer’s affirmative acknowledgement to Service Provider that Customer has a valid license that permits Service Provider to perform the Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless Service Provider in a written statement of work (“SOW”) expressly agrees to conduct such monitoring. Customer will indemnify and hold harmless Service Provider against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to Service Provider or any Customer breach of this Section.
- Term. The terms of this Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated herein.
- Term of Purchased Subscriptions. The term of each subscription shall be specified in the SOW. Except as otherwise specified in the SOW, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email is acceptable) at least 90 days before the end of the relevant subscription term.
- Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, five calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after 10 days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
- Termination for Bankruptcy, Insolvency or Financial Insecurity. Either Party may terminate this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365).
- Termination for Convenience. Service Provider may terminate this Agreement at any time with or without cause by giving days prior written notice. In the event that Service Provider terminates this Agreement for convenience, the Service provider will refund Customer any prepaid fees covering the remainder of the Term of all SOW after the effective date of termination
- Obligations upon Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay Service Provider for all Services rendered prior to the effective date of termination. Upon termination each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination. Upon the termination of the Agreement, the Customer shall promptly return to Service Provider any equipment, materials or other property of the Service Provider relating to the terminated Services which are in Customer’s possession or control.
- Non-Solicitation. During the term of this Agreement and for two (2) year following the expiration or termination date of the Agreement, each Party agrees not to directly solicit or induce any person who performs Services hereunder to leave the employ of the other Party. The Parties are not prohibited from responding to or hiring the other’s employees who inquire about employment on their own accord or in response to a public advertisement or employment solicitation in general.
- Relationship of the Parties. The relationship of the Parties hereto is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
- Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within business days of its occurrence.
- Arbitration. Any dispute, controversy or claim arising out of or related in any manner to this Agreement which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of 1 arbitrators sitting in Florida, Pinellas. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Florida. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the Parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential damages, indirect damages, incidental damages, special damages, exemplary, punitive damages or specific performance. Each Party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement, except that a Party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction if in its reasonable judgment such action is necessary to avoid irreparable harm.
- Attorney’s Fees. In the event there is any dispute concerning or arising out of this Agreement and, as a result, a Party incurs attorneys’ fees for the purpose of enforcing any provision of this Agreement or in defending any claims asserted by the other Party with respect to this Agreement, each Party shall be solely responsible for its own costs and attorney’s fees incurred in connection with the dispute, regardless of whether or not a lawsuit is actually filed and irrespective of which Party prevails in such legal proceedings.
- Collection Expenses. If Service Provider incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Customer agrees to reimburse Service Provider for all such costs, expenses and fees.
- Assignment; No Third-Party Beneficiaries. Service Provider may assign this Agreement, either in whole or part, without the express written consent of the Customer. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third-party beneficiaries to this Agreement.
- Severability. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
- Headings; Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
- Survival. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
- Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
- Authorized Signatories. It is agreed and warranted by the Parties that the individuals singing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
- Notices. All notices or other communications required under this Agreement shall be in writing and shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the following address or to such other address as such Party shall specify by like notice hereunder:
Service Provider: techiest, Inc
13031 McGregor Blvd, Suite 15, Fort Myers, Florida 33919
- Waiver. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
- Entire Agreement; Modification. This Agreement, and any exhibits attached hereto, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.
In witness whereof, the Parties hereto have executed this Services Agreement on the date set forth below.