1. DESCRIPTION OF SERVICES. This Agreement covers the provision of the services and materials (the “Services”) described in any and all statements of work (each, a “Schedule”), which, when executed by both parties, will become part of this Agreement.
2. SERVICES. Subject to and in accordance with the terms of this Agreement, including any accepted orders or change orders, Supplier grants Customer a non-exclusive, non-sublicensable, nontransferable, non-assignable, revocable license for the term of this Agreement for the access and use of Supplier’s Services. Services may be used by Customer for internal business purposes only.
Customer shall use the Services for its own internal business, non-residential and non-personal use. Customer acknowledges and agrees that it will not allow any third-party, including Customer’s vendors and service providers, to access or use the Services unless Supplier specifically grants such third-party access for the purpose of providing authorized customer support services.
3. SETTLEMENT. Customer agrees to pay within 30 days after the end of each month. Time is of the essence in regard to the payment terms of this Agreement.
4. PAYMENT. Customer agrees to pay the Supplier as specified in the Schedule. Unless otherwise specified, Customer shall be billed in advance each month and payment is due within 30 days of invoice. If the Supplier does not receive payment within 30 days after the invoice has been submitted for the month for which the payment is due, Customer’s payment will be considered late and not paid in full. Supplier may suspend or terminate your Services for failure to timely pay in full. Late payments are subject to a late payment charge of the greater of interested calculated at the lesser of eighteen percent (18%) and the maximum amount permitted by law. Such interest will accrue daily from the due date until the date of actual payment of the overdue amount, whether before or after judgment. Customer shall pay all reasonable out-of-pocket directly incurred costs of Supplier with Supplier providing detailed receipts. Any costs greater than $500 per month require written consent (including email) from Customer, not to be unreasonably withheld. In addition to any other right or remedy provided by law, if Customer fails to pay for the Services when due, Supplier has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies. Customer shall pay all collection costs incurred by Supplier, including without limitation, reasonable attorneys’ fees whether or not a lawsuit is filed. Pro-rata billing may occur throughout the course of a billing cycle for add-ons that Customer may request during any given month. Time is of the essence in regard to the payment terms of this Agreement.
5. PROMOTIONAL MATERIAL. Supplier is permitted at its discretion, by Customer, to indicate in its marketing and promotional materials that Customer is using Supplier Products and Services.
6. LOCATION WHERE SERVICES WILL BE RENDERED. The supplier will perform services in accordance with this Agreement primarily at 215 Celebration Place, Suite 520, Celebration FL 34747. It will also perform services on site. Additionally, Supplier will perform services on the telephone, online, and at such other places to perform these services in accordance with this Agreement.
7. CONFIDENTIALITY. Except as otherwise permitted by this Agreement or in writing by the Disclosing Party, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as protective of Disclosing Party and its Confidential Information as the provisions of this Agreement. This provision will continue to be effective three (3) years after the termination of this Agreement. Any written (including email) waiver by Customer of these confidentiality obligations which allows Supplier to disclose Confidential Information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.
8. “Confidential Information” shall mean all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information will include Customer’s data. Supplier’s Confidential Information shall include the Services (and any portion thereof), the terms and conditions of this Agreement and any orders or change orders.
9. OWNERSHIP AND CONTROL. Except for rights expressly granted in this Agreement Supplier does not transfer any intellectual or other property or proprietary right to Customer. All right, title, and interest in any Service provided to Customer, including without limitation any copyright, trade secret and vested or potential trademark and patent rights, is solely the property of Supplier and its vendors and licensors. As between Customer and Supplier, all materials distributed by Supplier in connection with the Services will at all times remain the property of Supplier and upon the request of Supplier or upon termination of this Agreement Customer will promptly return any and all such materials. The supplier will have the sole and complete control over, and reserves the right at any time to make changes to the configuration, appearance, content and functionality of the Services. Additionally, Supplier will have sole and complete control over, and reserves the right at any time to make changes to, the configuration, appearance, content and functionality of the Services. In addition, Supplier reserves the right, at any time, without prior notice, to the exercise of its sole discretion to suspend or terminate any Service for the protection of the security and integrity of the Services or other business, technical or financial considerations as determined by Supplier.
10. SECURITY. Supplier strives to keep Customer content secure, but cannot guarantee that they will be successful at doing so, given the nature of the Internet and other external factors. Reasonable industry practices will be instituted by Supplier to keep Customer’s data and information safe. Accordingly, Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of their content and applications. Supplier strongly encourages Customer, where available and appropriate, to (a) use encryption technology to protect their content from unauthorized access, (b) routinely archive their content, and (c) keep their Applications or any software that they use or run with our Services current with the latest security patches or updates. Supplier shall have no liability to Customer for any unauthorized access or use, corruption, deletion, destruction or loss of any of Customer’s content or applications.
11. WARRANTY. Supplier shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Supplier’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Supplier on similar projects.
12. LIMITATIONS OF LIABILITY. Neither Supplier nor any of their licensors shall be liable to Customer for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other losses (even if Supplier has been advised of the possibility of such damages) in connection with this Agreement, including, without limitation, any such damages resulting from: (i) the use or the inability to use the Services; (ii) the cost of procurement of substitute goods and services; or (iii) unauthorized access to or alteration of Customer’s content. In any case, Supplier’s aggregate liability under this Agreement shall be limited to the amount actually paid by Customer to Supplier hereunder for the Services. Some Jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply to Customer and Customer may have additional rights.
13. INDEMNIFICATION. Customer agrees to indemnify, defend and hold Supplier, Supplier’s affiliates and licensors, Supplier and their business partners and each of Supplier and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorney fees), arising out of or in connection with any claim arising out of (i) Customer’s use of the Services in a manner not authorized by this Agreement, and/ or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (ii) Customer’s content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Customer content, (iii) Customer violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, Customer’s representations and warranties, or (iv) Customer or Customer’s employees’ or personnel’s negligence or willful misconduct.
14. DEFAULT. The occurrence of any of the following shall constitute a material breach and default under this Agreement:
o The failure to make a required payment when due.
o The insolvency or bankruptcy of either party.
o The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
o The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
o The violation of the confidentiality provisions of this Agreement.
o The Customer’s improper use of the Supplier’s products and Services.
15. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have five (5) days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
16. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
17. WAIVER. No waiver by either party of any breach by the other party of any of the provisions of this Agreement will be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver will be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.
18. REMEDIES. The rights and remedies of the parties hereunder shall not be mutually exclusive, i.e., the exercise of one (1) or more of the provisions hereof shall not preclude the exercise of any other provision hereof. The parties acknowledge, confirm and agree that damages may be inadequate for a breach of any provision hereof, the respective rights and obligations hereunder shall be enforceable by specific performance, injunction or other equitable remedy. Nothing contained in this Agreement shall limit or affect any rights at law or statute or otherwise for a breach or threatened breach of any provision hereof, it being the intent of this provision to clarify that the respective rights and obligations of the parties shall be enforceable in equity as well as at law or otherwise.
19. NO ASSIGNMENT. No benefit or duty of Customer under this Agreement will, without the consent of Supplier, be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so will be void.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
21. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will constitute one and the same instrument.
22. SEVERABILITY. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
23. AMENDMENT. This Agreement may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
24. GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the State of Florida.
25. ATTORNEY’S FEES TO PREVAILING PARTY. In any action or arbitration arising hereunder or any separate action or arbitration pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney’s fees and costs, in arbitration, the trial court and on appeal.
26. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.