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.
1.1 Services; Additional 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 incorporated by this reference. 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 written agreement separate and distinct from this Agreement.
2. TERM AND TERMINATION
2.1 Term. 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 be on a month to month basis. 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.
2.2 Termination. After the initial twelve (12) months 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 ten (10) 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.
3.1.1 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.
3.1.2 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 sixty (60) days of the date of the invoice.
3.1.3 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 on the Order Form as Designated Services. In acknowledgment of Customer’s selection of comprehensive services on the Order Form as Designated Services, Service Provider and Customer agree to the following fee or fee schedule for the Designated Services and payment terms, if different than as provided in section 3.1.2: n/a
4. SERVICE AVAILABILITY
4.1 Uptime. 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.
5. CREDIT FOR NON-COMPLIANCE
5.1 Service Availability. If 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:
|Service Availability||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.
6.1 Scheduled 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.
6.2 Emergency Maintenance. 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 4 hours in any given calendar month.
6.3 Hardware Replacement. Service Provider will use industry standard practices to determine whether 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 four 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 4 hours in any given calendar month.
6.4 Maintenance Windows. The scheduled maintenance windows have been set as follows: Monday to Sunday; between twelve (12) AM and six (6) AM Mountain Standard Time and/or Friday to Sunday between ten (10) PM and Midnight Mountain Standard Time.
7. CONFIDENTIAL INFORMATION
7.1 Confidential Information. Customer and Service Provider agree that all Customer’s records, material and information pertaining to Customer’s business, facilities and premises, including all information and material pertaining thereto exchanged or shared between them shall be treated and maintained as proprietary and confidential, except when disclosure is required or compelled by law.
8. LIMITED REPRESENTATIONS AND DISCLAIMER OF WARRANTIES
8.1 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.
8.2 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.
8.3 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
9.1 Independent Contractors. 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.
9.2 Binding Effect. 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.
9.3 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.
9.4 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.
9.5 No Waiver. 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.
9.6 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.
9.7 Notices. 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 USAOffice: +1 (208) 944-0031
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.
9.8 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.
9.9 Arbitration. 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.
9.10 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.
9.11 Attorney Fees. 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.
9.12 Conflicts. 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.
9.13 Counterparts. 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.