TERMS OF SERVICE
The following Terms of Service (“Agreement”) is effective between you (hereinafter “You,” “Your,” “Yours,” “User,” or “Client”), The Provider Tech Support Solutions, LLC. Doing Business As, Your Personal Ninja, (hereinafter “Provider”), An Arizona Limited Liability Company, hereinafter referred to as “Provider,” also defined below.
Your use of any and all services offered by Provider (“Provider Services”; the “Services”) shall be governed by the terms and conditions of this Agreement. Please read the terms of this Agreement carefully before using the Services.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING PROVIDER SERVICES YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES.
If You are using the Services on behalf of an organization, You are agreeing to these Terms for that organization and promising that You have the authority to bind that organization to these terms. In that case, “You” and “Your” will refer to that organization.
1.1 In these Terms and Conditions:
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
“Business Day” means any weekday (Monday – Friday) other than a bank or public holiday in the United States of America;
“Business Hours” means the hours of 8:00 a.m. to 6:00 p.m. Arizona Time on a Business Day;
“Charges” means the following amounts:
(a) the amounts specified in the Statement of Work (“SOW”), incorporated by reference; and
(b) such amounts as may be agreed by the parties in writing from time to time;
“Confidential Information” means Provider Confidential Information and the Client Confidential Information;
“Contract” means a contract made under these Terms and Conditions between Provider and the Client such as a SOW;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);
“Client” means the person or entity identified as such in the Statement of Work relating to this Agreement;
“Confidential Information” means:
(a) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself (for avoidance of doubt, neither party shall be required to identify information as confidential in order to avail itself of the protections set forth herein); and
(b) the financial terms of the Contract;
“Client Personal Data” means any Personal Data that is processed by Provider on behalf of the Client in relation to the Contract, but excluding personal data with respect to which Provider is in control;
“Effective Date” means the date upon which the parties execute a Statement of Work or the provision of Provider Services otherwise commences;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Data” means all data, works and materials: uploaded to or stored on the Hosting Platform by Client, or by any third party using any software made available by means of the Hosting Platform; transmitted by the Hosting Platform in relation to any Contracts with Client, or in relation to any third party using any software made available by means of the Hosting Platform; or supplied by Client to Provider for uploading to, transmission by or storage on the Hosting Platform;
“Hosting Account” means an online account enabling a person to configure and manage the Hosting Services;
“Hosted Solution” means the platform managed by Provider and used by Provider to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, as specified in the Statement of Work;
“Hosting Services” means those hosting services specified in the Statement of Work which is attached hereto and incorporated herein by reference, which will be made available by Provider to Client as a service via the internet or via direct link system in accordance with these terms and conditions;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights , including, but not limited to copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;
“Network Management” means services offered by Provider related to troubleshooting network-related concerns on network equipment installed by Provider:
“Personal Data” means personal data under any of the Data Protection Laws;
“Provider Services” means any and all Services provided by Provider to Client, as specified in the Statement of Work;
“Project” shall refer to Provider’s Services after any Statement of Work has been accepted and executed by Client;
“Statement of Work” or “SOW” means a Contract detailing the Provider Services, outlining details including, but not limited to the project scope, timelines, and pricing;
“Term” means the term of the Contract commencing on the Effective Date and terminating pursuant to the terms of this Agreement;
“Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions, the Statement of Work and Schedules, including any amendments to that documentation from time to time; and
“Website” means any website(s) and website-related Services designed, built, provided or maintained in connection with this Agreement will be referred to as Website.
“Materials” shall refer to all materials provided to Client by, through or at the direction of Provider in connection with the Website and Services as outlined in this Agreement.
“Standard Operations” shall refer to all regular and customary tasks, procedures, and activities performed by us in the course of providing our services, encompassing all work necessary for their consistent and efficient execution.
In exchange for access to and use or Provider Services, You, Your agents, employees, contractors, and affiliates (if applicable) agree to the following:
All parts, sub-parts, exhibits and addendums of this Agreement (including the SOW) are specifically incorporated by reference here. This Agreement shall govern Your access to and use of Provider Services.
You understand and agree that the act of accepting, accessing or utilizing Provider Services constitutes continuance acceptance of all the terms of this Agreement.
2.0 Term and Termination.
The term of this Agreement (the “Term”) commences on the Effective Date and will continue until termination as provided below.
This Agreement may be terminated by either party upon 30 days’ prior written notice following expiration of the last remaining SOW, or if the other Party materially breaches this Agreement and such breach is not cured within 30 days following receipt of written notice of termination. Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties accrued prior to the date of the termination. Upon termination of this Agreement, Client shall pay Provider any unpaid fees set forth in an associated SOW for Services provided through the date of termination.
Provider may terminate this agreement if:
(a) Client fails to remedy a breach of this Agreement within 30 days after receiving notice from Provider of the breach;
(b) Client becomes insolvent or files for bankruptcy; or
(c) Client ceases to carry on business.
Upon the date of effective termination of this Agreement, Provider shall make available to Client for download an electronic copy of the Hosted Data (as constituted upon that date). Provider shall however have no obligations under this section to make available such Hosted Data if any amounts payable by Client to Provider under the Contract are due but unpaid upon that date. Client acknowledges that whilst Provider may delete the Hosted Data from its computer systems following termination, Provider may also retain such Hosted Data after termination for legal compliance and/or technical reasons, subject in each case to the other provisions of this Agreement.
3.0 Services. Provider shall provide to Client the services (collectively, the “Services”) specified in one or more Contracts or Statements of Work agreed to in writing or otherwise accepted by the Parties from time to time pursuant to this Agreement (each such Contract or statement of work, a “Statement of Work” or “SOW”). Once executed, each Statement of Work shall be automatically governed by the terms hereof and incorporated by reference herein. The Services shall be performed in accordance with the terms and conditions contained herein and in accordance with the SOW for each project.
Unless a SOW specifically states otherwise, in the event of any conflict between the terms of this Agreement and the terms of a SOW, the terms of the SOW shall govern. The Services for each project shall be performed by the Provider personnel identified in each relevant SOW unless otherwise approved by Client.
Each SOW shall describe the Services to be provided by the Provider under the applicable SOW, setting forth, the scope, fees, and other key terms. The SOWs will be signed by each Party, reference this Agreement, and be sequentially numbered as executed. Each SOW shall be substantially in the form provided on by Provider from time to time.
4.0 Conduct of Services. All work shall be performed in a workmanlike and professional manner consistent with industry standards.
5.0 Method of Performing Services. Provider shall have the right to determine the method, details, and means of performing the work to be performed for Client. Client shall, however, be entitled to exercise general power of supervision and control over the results of work performed by Provider to assure satisfactory performance including the right to inspect, the right to stop work, the right to make suggestions or recommendations as to the details of the work, and the right to propose modifications to the work.
6.0 Hosting Services. Provider hereby grants to Client a right to use the Hosting Services in accordance with the terms and conditions of this Agreement and as reflected in the SOW during the Term. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by Provider to the Client under Clause 4.0 is subject to the following limitations:[TN1]
(a) the Hosted Solution may only be used by the officers, employees, agents and subcontractors of either the Client or an Affiliate of the Client;
(b) the Hosted Solution may only be used by the named users identified in SOW or other Contract providing that the Client may change, add or remove a designated named user in accordance with the procedure set out therein;
(c) the Hosted Solution must not be used at any point in time by more than the number of concurrent users specified in SOW or other Contract providing that the Client may add or remove concurrent user licenses in accordance with the procedure set out therein;
(d) Client must not sub-license its right to access and use the Hosted Solution;
(e) Client must not permit any unauthorized person to access or use the Hosted Solution;
(f) Client must not make any alteration to the Hosted Solution, except as expressly permitted by the SOW or other Contract;
(g) Client shall use reasonable endeavors, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorized person may gain access to the Hosting Account or any element of the Hosted Solution that is accessible using the Hosting Account.
(h) The Client shall have no administrative access or administration rights in relation to the Hosting Platform or Hosted Solution.
(i) For the avoidance of doubt, the Client has no right to access the software code (including object code, intermediate code and source code) of the Hosting Platform or Hosting Solution, either during or after the Term.
(j) Provider may suspend access to the Hosting Platform or Hosting Solution if any amount due to be paid by the Client to Provider under the Contract is overdue, and Provider has given to the Client at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
(k) Provider reserves the right to utilize third-party providers in the performance of its obligations under this Agreement.
(l) Client shall receive access to the Hosted Solution through a browser or other technology, as designated by Provider from time to time.
(m) Provider shall perform all hosting, support and maintenance services to the Hosted Solution.
(n) Provider may modify the content, design or format of the Hosted Solution at any time.
(o) Client shall be solely responsible for updating, converting, or otherwise modifying its systems to maintain compatibility with and functionality of the Hosted Solution.
7.0 Website Design Services. If Client engages Provider for the performance of Website Design Services, Provider shall deliver to Client a fully customized website. Access to the following features and/or Services shall be included with Your purchase of Provider Services and continued access to the Website: customizable pre-built pages, prebuilt forms, review funnel for collecting testimonials, content management system, themes and plugins, hosting, security, website optimization, search engine optimization (SEO), Google analytics and search console setup, access to a website dashboard and support.
After a Website has been approved for final upload, additional changes and edits will be billed at Provider’s standard hourly rate.
Your purchase of Website Services, Website Materials and/or access to the Website provided by Provider shall not constitute the purchase of the Website. Provider is and shall always be the owner of the Website. Provider shall maintain ownership of the Website subsequent to Your purchase of access to the Website and Website Services and throughout the life of the Website.
8.0 Network Management Services. If Client engages Provider for the performance of Network Management Services, Provider will provide reasonable troubleshooting, maintenance and support regarding the use and operation of the Website or Materials as outlined in this Agreement and the SOW. All Client troubleshooting, maintenance and support requests shall be submitted to Provider via telephone or email (with the contact telephone numbers and email addresses provided on Provider’s Client Support Site). Provider shall have the exclusive right to perform troubleshooting, maintenance and support Services to Websites and Materials accessed by client through Provider during the Term.
9.0 Ancillary Services. Provider offers ancillary services in addition to its Hosting Services.
The details related to each of Provider’s ancillary services are outlined in Schedule A, attached hereto. Client may elect to engage Provider for the performance of any or all of the ancillary services outlined in Schedule A. Any ancillary services selected by Client shall be reflected in the SOW, the performance, delivery and receipt of such Services to be governed by the terms and conditions of this Agreement.
10.0 Service Availability and Access. Provider shall provide the Services in accordance with the standards of skill and care reasonably expected from a leading service provider in Provider’s industry. By utilizing the Services, You authorize Provider to access and modify Your systems, software, configurations, technology infrastructure and any other components or Materials, as necessary for Provider to perform Services in accordance with this Agreement.
11.0 Client Responsibilities. In addition to the obligations of the Client set forth elsewhere in this Agreement, the Client will provide suitable equipment, information, and site and system access and facilities (including but not limited to telecommunications services, office services, and supplies). Client will also satisfy any assumptions and perform any Client obligations identified in a SOW. Client shall make available to Provider, in a timely manner, all data, files, documentation, or other information necessary or appropriate for the performance of the Services. Client will be responsible for, and Provider shall be entitled to rely upon, the content, accuracy, completeness, and consistency of all such data, materials, and information. Client understands and acknowledges that there is a risk that information sent by electronic means may be viewed or received by unauthorized persons, and agrees that by sending or receiving information by electronic means, Client shall be deemed to have accepted this risk and the consequences of any such unauthorized disclosure. Tasks that are not specifically assigned to Provider in any SOW are Client’s sole responsibility and are subject to Client’s supervision, management, and control. Client understands that Provider’s performance is dependent on Client’s timely and effective performance of Client’s responsibilities and timely decisions and approvals by Client. All Services provided to Client shall be deemed accepted if, within five (5) days after delivery, Client has not provided to Provider written notice identifying specifically the basis for disapproval. Provider shall be entitled to rely on all decisions and approvals of Client in connection with the Services.
12.0 Client Warranties and Acknowledgments. The Client represents and warrants to Provider that:
(a) Client is not, and with the passage of time does not expect to become, insolvent.
(b) Client owns all rights in any content uploaded, published, or provided to Providers in connection with the Services, that such content must be reliable and legally published. Client understands that Provider does not provide any legal advice or any recommendation with respect to any laws or requirements applicable to Client’s use or any of Client’s End Users, or Client’s compliance therewith. Client confirms that it owns all rights in and to the Client Personal Data, including any Intellectual Property; or otherwise has (and will continue to has) the full power, title, licenses, consents and authority, in and to the Client Personal Data, as necessary to legally give access to, import, copy, or otherwise utilize such Client Personal Data. Client confirms and agrees to the following:
(i) Client Personal Data is (and will continue to be) true, current, accurate, non-infringing upon any third-party rights, and in no way unlawful for Client to upload, import, copy, possess, post, transmit, display or otherwise use, in the country in which Client or Client’s End Users reside, or for Provider and/or Client’s End Users to access, import, copy, upload, use or possess in connection with the Services; and
(ii) Client has obtained all consents and permissions required under all applicable laws, regarding the transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the Client Personal Data, and Client will adhere to all laws applicable thereto.
13.0 Cancellation. Without limiting other remedies, Provider may at any time suspend, terminate, or refuse to provide you with access to Provider’s Services. In addition, Provider may notify authorities or take any actions it deems appropriate, without notice to you, if Provider suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of this Agreement or any policies or rules established by Provider; or (ii) engaged in actions relating to or in the course of using Provider’s Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Provider users, Provider or any other third-parties or Provider’s Services.
13.1 Without limiting any other terms of this Agreement, You may cancel your account by providing ninety (90) days’ notice in writing of Your request to cancel.
13.2 After any termination, You understand and acknowledge that Provider will have no further obligation to provide Provider’s Services and all licenses and other rights granted to you by this Agreement will immediately cease. Provider will not be liable to you or any third-party for termination of Provider’s Services or termination of your use thereof.
13.3 Any suspension, termination or cancellation will not affect Your obligations to Provider under this Agreement (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
14.0 Intellectual Property Ownership. Provider’s Services, the Hosted Platform and Hosting Solution are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in this Agreement, Provider and its licensors exclusively own all right, title and interest in and to the Provider’s Services and content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or relating to Provider’s Services or content. Provider claims no ownership interest in any Third-Party Materials and expressly disclaims any liability concerning those materials.
14.1 By utilizing or otherwise accessing Provider’s Services, Client grants Provider a license to use any and all photographs and other images furnished by Client to Provider, in whatever format (collectively, the “Materials”), for marketing, advertising, publicity, business trade or art purposes, or for any other legal purpose, in any and all media outlets (e.g., TV, radio, newspaper, Internet, social media, etc.). Client grants to Provider an unlimited, perpetual, irrevocable, paid in full, royalty-free, univerwise-wide license to use the Materials for marketing, advertising, business trade or art purposes, and for any other legal purpose of Provider, in and through any and all media outlets, including, without limitation, TV, radio, newspaper, Internet, and social media.
14.2 All right, title, and interest in and to any notes, records, works of authorship, designs, inventions, improvements, technology, developments, discoveries, ideas, and trade secrets conceived, discovered, authored, invented, developed, or reduced to practice by Provider during Term, solely or in collaboration with others, arising out of, or in connection with, performing the Services under this Agreement and any copyrights, patents, trade secrets, mask work rights, or other intellectual property rights relating to the foregoing (collectively, “Inventions”) are the sole property of Provider.
14.3 Client will promptly make full written disclosure to Provider of any Inventions and deliver and, to the extent that ownership of the Inventions does not by operation of law vest in Provider, assign (or cause to be assigned) and hereby irrevocably assigns fully to Provider all right, title and interest in and to all Inventions, including the right to sue for past, present, and future infringement. Any assignment to Provider of Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under applicable law, Client hereby waives and agrees not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.
15.0 Pricing and Payment. The Client shall be invoiced in accordance with the terms and conditions outlined herein and reflected in the SOW. Client shall pay the fees outlined in the SOW to Provider in accordance with these Terms and Conditions.
15.1 Client shall be invoiced for Provider Services according to the fees outlined in the SOW.
15.2 Client shall be billed monthly for any charges incurred in the previous month, approximately fifteen (15) days apart on the last day of each calendar month as reflected in the SOW.
15.3 Client invoices shall be paid in full within five (5) days of invoice submission (“Payment Due Date”). Invoices not paid in full by the Payment Due Date shall be considered (“Late Invoices”)
15.4 If Client surpasses a Subscription Plan threshold during the Term, Client may:
(a) Purchase a new Subscription Plan of equal or greater value, as per the SOW, subject to the terms of this Agreement;
(b) purchase ancillary services on an individual, as-needed basis as per the SOW, subject to the terms of this Agreement.
15.5 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by Client to Provider.
15.6 Provider may change any element of the fees without providing advance notice, as long as the increase is less than 5%. For increases of 5% or more, the Provider must give the Client at least 30 days’ written notice. This applies to the most recent fee change under this clause, or, if no change has occurred, from the date the Contract was executed.
15.7 Provider shall issue invoices for the Charges to Client on the last day of each calendar month, as reflected in the SOW.
15.8 Client must pay the fees to Provider within the period of seven (7) days following the issuance of an invoice in accordance with this clause (“Payment Due Date”).
15.9 Invoices not paid in full by the Payment Due Date shall be considered (“Late Invoices”).
15.10 The interest rate on Late Invoices shall be a per annum rate equal to the Federal Prime Rate in effect on the Payment Due Date plus ten (10) basis points.
15.11 Client authorizes Provider to securely save and automatically charge any credit card or bank card information submitted by Client to Provider in accordance with this Agreement.
16.0 Refunds. You acknowledge and agree that your purchase of the Services is non- refundable under any and all circumstances, excluding duplicate charges.
17.0 Cancelled/Rescheduled Appointments. Appointments cancelled less than forty-eight (48) hours prior to the scheduled appointment time will be billed at the full hourly rate plus travel time. If a deposit was required to hold Your appointment, the deposit will not be refunded in case of cancellation.
18.1 Provider shall:
(a) keep Client Confidential Information strictly confidential;
(b) not disclose Client Confidential Information to any person without Client’s prior written consent, and then only under conditions of confidentiality;
(c) use the same degree of care to protect the confidentiality of Client Confidential Information as Provider uses to protect Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to Client Confidential Information; and
(e) not use any of Client Confidential Information for any purpose other than as necessary to perform and otherwise deliver the Services under this Agreement.
18.2 Client shall:
(a) keep Provider Confidential Information strictly confidential;
(b) not disclose Provider Confidential Information to any person without Provider’s prior written consent and then only under conditions of confidentiality approved in writing by Provider;
(c) use the same degree of care to protect the confidentiality of Provider Confidential Information as Client uses to protect Client’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to Provider Confidential Information; and
(e) not use any of Provider Confidential Information for any purpose other than as necessary to perform its obligations under this Agreement.
18.3 Notwithstanding the foregoing clauses in this section, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
18.4 No obligations are imposed by this section with respect to a party’s Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
18.5 The restrictions in this section do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognized stock exchange.
18.6 Upon the termination of the Contract, each party shall immediately terminate access to and use of the other party’s Confidential Information.
18.7 Following the date of effective termination of this Agreement, and within five (5) Business Days following the date of effective termination of the Contract, the relevant party must:
(a) irreversibly delete from its media and computer systems all copies of the other party’s Confidential Information (and ensure that the other party’s Confidential Information is irreversibly deleted from the media and computer systems of all persons to whom the relevant party has directly or indirectly disclosed that Confidential Information);
(b) ensure that no other copies of the other party’s Confidential Information remain in the relevant party’s possession or control (or the possession of control of any person to whom the relevant party has directly or indirectly disclosed the other party’s Confidential Information);
(c) certify in writing to the other party that it has complied with the requirements of this section, subject in each case to any obligations that the relevant party has under this Agreement to supply or make available to the other party any data or information, and providing that the relevant party shall have no obligation under this section to delete or to cease to possess or control any of the other party’s Confidential Information to the extent that the relevant party is required by applicable law to retain that Confidential Information.
18.8 The provisions of this section shall continue in force indefinitely following the termination of the Contract.
19.0 Privacy and Data Protection. Provider shall comply with the Data Protection Laws with respect to the processing of Client Personal Data.
19.1 Client warrants to Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to Provider under or in connection with the Contract.
19.2 Client shall only supply to Provider, and Provider shall only process Client Personal Data for any purpose other than as necessary to perform and otherwise deliver the Services under this Agreement.
19.3 Provider shall only process Client Personal Data during the Term subject to the other provisions of this section.
19.4 Provider shall only process Client Personal Data on the documented instructions of Client (including with regard to transfers of Client Personal Data to a third county under the Data Protection Laws) as set out in this Agreement or any other document agreed by the parties in writing.
19.5 Client hereby authorizes Provider to make the following transfers of Customer Personal Data:
(a) Provider may transfer Client Personal Data internally to its own employees, offices and facilities in the jurisdiction referenced in any SOW relating to this Agreement;
(b) Provider may transfer Client Personal Data to its third-party processors in the jurisdiction referenced in any SOW relating to this Agreement and may permit its third-party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards; and
(c) Provider may transfer Client Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
19.6 Provider shall promptly inform Client if, in the opinion of Provider, an instruction of Client relating to the processing of Client Personal Data infringes the Data Protection Laws.
19.7 Notwithstanding any other provision of this Agreement, Provider may process Client Personal Data if and to the extent that Provider is required to do so by applicable law. In such a case, Provider shall inform Client of the legal requirements before processing, unless that law prohibits such information (on important grounds of public interests).
19.8 Provider shall ensure that persons authorized to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
19.9 The Parties shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for Client Personal Data.
19.10 Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist Client with the fulfilment of the Client’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
19.11 Provider shall assist Client in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. Provider may charge Client at its standard time-based charging rates for any work performed by Provider at the request of Client pursuant to this clause.
19.12 Provider must notify Client of any Personal Data breach affecting Client Personal Data without undue delay and, in any case, not later than 72 hours after Provider becomes aware of the breach.
19.13 Provider shall, at the choice of the Client, delete or return all of Client Personal Data to Client after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
19.14 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best efforts to promptly agree to such variations to the Agreement as may be necessary to remedy such non-compliance.
20.0 Right to Terminate Access. Provider reserves the right to immediately terminate Your access to the Website, Materials or Services in Provider’s sole and exclusive discretion, in the event of a suspected and reasonably supported suspicion of any breach of this Agreement by You.
You agree and acknowledge that your access to the Website, Materials, and Services is dependent upon your active subscription to (and payment for) Provider’s Services. Failure to maintain your subscription at any time will result in termination of the Website, and Your access to Materials and Services. You agree that You shall not participate in the following activities and that Your participation in the following activities shall constitute a material breach of this Agreement:
(a) copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble Provider Website, Services (or any part thereof), any Content offered by Provider or Third Party Services for use and display within User Website (“Licensed Content”) and/or any part thereof in any way, or publicly display, perform, transmit or distribute any of the foregoing without Provider’s prior written and specific consent and/or as expressly permitted under this Agreement;
(i) submit, transmit or display any User Content, or use Licensed Content in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of Provider or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;
(ii) upload, insert, collect or otherwise make available within the Website or the Services (or any part thereof), any malicious, unlawful, defamatory or obscene Content;
(iii) act in a manner which might be perceived as damaging to Provider’s reputation and goodwill or which may bring Provider into disrepute or harm; or
(iv) access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service.
You acknowledge and agree that your failure to abide by any of the foregoing or any misrepresentation made by You herein may result in the immediate termination of any Website, Materials or any Services provided to You — with or without further notice to You, and without any refund of amounts paid on account of any such Services.
You acknowledge that interruption, cancellation or termination of Your subscription or the Services may cause or result in the loss of certain content, features, or capacity of Your Website, including any User Content, End User data, or other usage data retained therein or otherwise included in Provider’s Services. You assume all liability and risks associated with such interruption, cancellation or termination of Services and indemnify and hold harmless Provider in relation to the same.
21.0 Warranties. Provider gives no warranties with respect to any aspect of the Website, Materials or Services, or any materials related thereto or offered in connection with the Services, including, but not limited to results and outcomes. To the fullest extent possible under the laws governing this Agreement, Provider disclaims all implied warranties, including but not limited to warranties of fitness for a particular purpose, accuracy, timeliness and merchantability. Neither Provider nor its affiliates can accept any responsibility or liability for reliance by You or any person on any aspect of the Website and/or any information provided in connection with the Website.
Other than to the extent required as a matter of law: (i) neither Provider nor its affiliates shall be liable for any direct, indirect, special, incidental, or consequential costs, damages or losses arising directly or indirectly from the Website or other aspect related thereto or in connection with this Agreement. The maximum aggregate liability of Provider for any claim in any way connected with the Website, Materials, Services or this Agreement whether in contract, tort or otherwise (including any negligent act or omission) shall be limited to the amount paid by You to Provider under this Agreement to participate in the Website.
22.0 Results. You acknowledge that factors unique to You, and outside the control of Provider will determine the results You achieve in connection with the Services. Provider does not and cannot guarantee any specific results from Your purchase of Provider’s Services. Provider’s obligation is to provide access to the Services pursuant to the terms of this Agreement. All obligations of Provider in relation to this Agreement shall be deemed fulfilled by Provider after it has provided access to the Website, Materials, and Services outlined in this Agreement. You acknowledge and agree that Your failure to access or utilize any Materials or Services shall have no effect on whether or not Provider is deemed to have fulfilled its obligations.
23.0 Authorization to Publish. Provider and its employees and agents have the right to take photographs, videotape, audio or digital recordings of the Website, and to use these in any and all media for any and all lawful purposes.
Provider reserves the right to elicit, accept, and publish feedback from Client. You acknowledge and agree that feedback, reviews, opinions, and communications provided by You in any form, regarding the Website, Materials, and Your overall experience with Provider may be shared in print, digital, and electronic format, publicly or privately and/or for marketing purposes. You hereby authorize Provider, its agents, its employees, and its affiliates all rights to exhibit this recorded material in print, digital, and electronic format, publicly or privately and/or for marketing purposes. You acknowledge and agree that by purchasing this Website, You waive any and all rights, claims, or interests to control the use of Your likeness, or identity in print, digital, and electronic format, publicly or privately and/or for marketing purposes.
24.0 Limitation on Liability. Provider shall not be liable for service interruptions caused by: scheduled downtimes for maintenance and updates; acts or omissions of Client; behavior of Client equipment, facilities or applications; failures in Client equipment or software; damages due to external causes, e.g. vandalism, theft, terrorism, etc.; downtimes due to technical or other problems not caused by Provider; or Force Majeure events.
24.1 PROVIDER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES. PROVIDER IS NOT RESPONSIBLE FOR PROBLEMS THAT OCCUR AS A RESULT OF THE USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE. IN NO EVENT WILL THE AMOUNT CLIENT MAY RECOVER UNDER THIS AGREEMENT EXCEED THE TOTAL PAYMENTS MADE TO PROVIDER BY CLIENT PURSUANT TO THIS AGREEMENT IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CONSULTANT.
24.2 Provider shall be deemed to have been discharged from all liability in respect of the services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the Term, or if no date is specified, on the expiration of 3 years from the completion of the services.
25.0 Insurance. Provider shall at all times during the term of this Agreement and at its own expense provide and maintain in effect those insurance policies and minimum limits of coverage as designated below, and any other insurance required by law in any jurisdiction where Provider provides Services under this Agreement.
25.1 Workers Compensation and Employers Liability Insurance. Workers Compensation insurance shall be provided as required by any applicable law or regulation and in accordance with the provisions of the laws of the nation, state, territory or province having jurisdiction over Contractor’s employees. Employers Liability insurance shall be provided in amounts not less than $1,000,000.
25.2 Commercial General Liability Insurance. Provider shall carry Commercial General Liability insurance covering all operations by or on behalf of Provider arising out of or connected with this Agreement providing insurance for bodily injury, property damage, personal injury and advertising injury, as those terms are defined by Commercial General Liability insurance policies, with limits of liability not less than $1,000,000 each occurrence and $1,000,000 in the aggregate. Such insurance must be on an “occurrence” basis and not “claims-made” basis. Such insurance must provide for contractual liability coverage, cross liability coverage, products/completed operations coverage, and independent contractor’s coverage. The “your work” exclusion in such insurance must except damage caused by work done by a Provider of the insured.
25.3 Errors and Omissions Liability Insurance (Professional Liability). Provider shall carry Professional Liability or Errors and Omissions insurance coverage with limits of not less than $1,000,000 in the aggregate.
26.0 Notices. All notices required or permitted hereunder shall be in writing addressed to the respective parties as set forth herein, unless another address shall have been designated, and shall be delivered by email to [email protected].
Receipt of notices under this Agreement will be deemed to have occurred:
(a) Three (3) business days after dispatch for mail within the same country;
(b) Ten (10) business days after dispatch for international mail; and
(c) One (1) business day after dispatch for email.
27.0 Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto and supersedes all prior representations, proposals, discussions, and communications, whether oral or in writing. This Agreement may be modified only in writing and shall be enforceable in accordance with its terms when signed by the party sought to be bound.
28.0 Indemnification. Client shall defend, indemnify and hold harmless Provider from and against all claims, liability, losses, damages and expenses (including attorneys’ fees and court costs) arising from or in connection with the use or application of Provider’s Services by Client or any direct or indirect purchaser or licensee of Client. Provider shall indemnify, defend and hold harmless Client, its directors and employees from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney’s fees) and liabilities of, by, or with, respect to, third parties (“any claims”), to the extent they arise, or are alleged to arise, from intentional or negligent acts or omissions of Provider, Provider’s subconsultants, Provider’s suppliers, and/or Provider’s employees, arising under this Agreement or in any way related to performance hereof. Provider shall provide Client with indemnifications as may be reasonably required by Client and in a form reasonably satisfactory to Client, covering the entities with whom the Client contracts. The obligations of the indemnifications extended by Provider to Client shall survive the termination or expiration of this Agreement. In no event shall either Party be liable to the other for payment of any special, incidental, indirect or consequential damages, even if the other Party has been informed in advance of the possibility of such damages.
29.0 Dispute Resolution. This Article supersedes any rules governing mediation or arbitration under the law of any jurisdiction. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute by binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and any judgment may be entered upon it by any court having proper jurisdiction.
In the event of any litigation with regard to this Agreement, the prevailing party or Parties shall be entitled to receive from the non-prevailing party or parties and the non-prevailing party or parties shall pay all reasonable fees and expenses of counsel for the prevailing party or parties.
30.0 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to Provider’s Services and all related activities. This Agreement shall not be modified except in writing signed by both parties or by a new posting of this Agreement issued by Provider. If any part of this Agreement is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of the remaining provisions. The failure of Provider to exercise or enforce any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver of any right or provision by Provider must be in writing and shall only apply to the specific instance identified in such writing. You may not assign this Agreement, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without our prior written consent. This Agreement and any action related thereto will be governed by the laws of the State of Florida without regard to its conflict of laws provisions.
31.0 Governing Law. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Arizona as they apply to a contract entered into and performed in that State.
32.0 Force Majeure. Provider shall not be liable to Client for any failure or delay caused by events beyond Consultant’s control, including, without limitation, Client’s failure to furnish necessary information, sabotage, failure or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials or equipment, or technical failures.
33.0 No Conflict. Provider represents and warrants that it has no obligations to any third party which will in any way limit or restrict its ability to perform consulting services to Client hereunder. Provider agrees that it will not disclose to Client, nor make use in the performance of any work hereunder, any trade secrets or other proprietary information of any third party, unless Provider may do so without Provider or Client incurring any obligation (past or future) to such third party for such work or any future application thereof.
34.0 Rights Cumulative. The rights and remedies contained in this document are cumulative and are not exclusive of any rights and remedies provided by law.
35.0 No Waiver. The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right to insist on performance of that obligation or to claim damages unless that party acknowledges in writing that the failure is a waiver; and at any other time to insist on performance of that or any other obligation under this Agreement of the other party.
36.0 Assignment. The Client may not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of its rights or obligations under this Agreement without the prior written consent from Provider. An assignment in contravention of this clause shall be void.
37.0 Independent Contractors. The parties are independent contractors and neither party is the legal representative, agent, joint venturer, partner or employee of the other party for any purpose whatsoever. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty, whether express or implied, on behalf of or to bind the other party in any respect.
38.0 Non-solicitation. The parties agree not to solicit for employment or enter into consultant relationships with employees or consultants of each other during the Term and twelve (12) months after the termination of this Agreement.
39.0 Delay. In the event the performance by Provider requires or is contingent upon the Client’s performance under this Agreement, and the Client delays or withholds such performance beyond the agreed-upon time period (or beyond five (5) days, if a time period is not specified), the time for the performance by Provider shall be extended.
40.0 Non-exclusivity. Each party recognizes that Provider personnel providing services to the Client under this Agreement may perform similar services for others and this Agreement shall not prevent Provider from using the personnel provided to the Client under this Agreement for such purposes. Nothing in this Agreement shall impair Provider’s right to acquire, license or develop for itself or others or have others develop for Provider similar services as contemplated by this Agreement. Nothing shall prevent Provider from using contractors or third parties to provide all or part of the Services.
41.0 Client Default. The occurrence of any of the following shall constitute a default of this Agreement by Client:
(a) Any failure by Client to pay any Fees or any other charge required to be paid under this Agreement, or any part thereof, when due, or Client shall fail to pay any payment required under any other Agreement with Contractor when due, and in either case such failure shall continue for a period of five (5) days from the date such payment was due; or
(b) Any failure by Client to observe or perform any other provision, covenant or condition of this Agreement to be observed or performed by Client where such failure continues for thirty (30) days after Notice thereof from Contractor to Client; or
(c) The entry of an order for relief with respect to Client any chapter of the Federal Bankruptcy Code, the dissolution or liquidation of Client or any guarantor of this Agreement, the insolvency of Client or the inability of to pay its debts when due, or the appointment of a trustee or receiver to take possession of all or substantially all of Client’s or any guarantor’s assets or Client’s interest under this Agreement that is not discharged within thirty (30) days.
42.0 Disputes and Chargebacks. Provider shall provide access to all products, Websites, Materials, and Services elected by Client, as outlined in this Agreement. Accordingly, You agree that your filing and/or processing of any chargebacks and disputes shall constitute a material breach of this Agreement. You acknowledge and agree that such a material breach caused by You filing and/or processing any chargebacks and disputes would result in damages that are difficult or impossible to establish or prove. You agree that liquidated damages for such a material breach resulting from You filing and/or processing any chargebacks and disputes in relation to the purchase of the Services shall be three (3) times the amount charged back. You explicitly authorize Provider to process a charge of three (3) times the amount charged back to your account in the event that You file a chargeback or dispute in breach of this Agreement.
You understand that filing a dispute, chargeback or other rejection of a charge pursuant to this Agreement may cause automatic termination of your access to the Website, Materials, and Services, without the option to re-activate, re-purchase, or resume access.
Client’s acceptance of the Terms and Conditions contained herein may be evidenced by:
(a) Returning a signed copy of the SOW;
(b) Giving Instructions to Provider after receiving a SOW;
(c) Oral acceptance of the SOW;
(d) Delivering data or documents to Provider; or
(e) Permitting Provider to perform Services or work on a Project.
Worry Free Support Plans
Description: A recurring service in which the Client pays an agreed upon recurring rate for access to the inclusions as detailed by the “Worry Free Support Plan Terms” below.
Consulting Services – Also referenced as Remote or Onsite Support
Description: Providing expert advice and tailored solutions in various aspects of IT and business operations. This service covers a wide range of areas, including but not limited to technology strategy, cybersecurity, system optimization, and project management.
Delivery Process: Support request, via designated email. open-ended communication channel to address and discuss the client’s concerns.
Cyber Security Services
Description: Protecting client data and IT systems from cyber threats. Services include firewall management, intrusion detection, antivirus solutions, and security audits.
Client Responsibilities: Grant access to IT systems, comply with recommended security practices, and promptly report any suspicious activities.
Delivery Process: Implementation of security measures, ongoing monitoring, and response to security incidents.
Data Backup Services:
Description: Ensuring data is regularly backed up and can be quickly recovered in case of loss. This includes managing cloud and on-premises backups.
Client Responsibilities: Provide access to data sources and storage devices, maintain a stable internet connection for cloud backups. Schedule check ins a few times per year.
Delivery Process: Setup of backup processes, regular testing of recovery procedures, and emergency data restoration when needed.
Patch Management / Automatic Security Updates:
Description: Regularly updating your client’s software and systems to patch vulnerabilities and improve security.
Client Responsibilities: Ensure systems are on and connected to the internet as scheduled for updates; promptly report any issues post-update.
Delivery Process: Schedule and automate updates, monitor for successful implementation, and resolve any issues that arise from the update.
Description: Continuously monitoring client systems to quickly identify and address any service interruptions.
Client Responsibilities: Provide access to monitoring tools, and notify of scheduled downtime.
Delivery Process: Implement monitoring tools, receive and respond to downtime alerts, and provide reports on incidents and resolutions.
Password Management Assistance:
Description: Assisting clients in managing and securing their passwords, often using specialized software.
Client Responsibilities: Use recommended password management tools, follow advised security practices.
Delivery Process: Set up and train clients on password management tools, provide ongoing support and updates as needed.
Discounts on Software:
Description: Offering clients discounted rates on software through your partnerships with vendors.
Client Responsibilities: Select software based on business needs, comply with licensing agreements.
Delivery Process: Provide a list of available software discounts, assist with procurement, and manage licensing.
Description: Regularly reviewing and optimizing client’s IT systems to ensure they are operating efficiently.
Client Responsibilities: Provide access to systems, implement suggested changes.
Delivery Process: Conduct periodic assessments, report findings, and implement efficiency improvements.
Additional Service Terms and Information
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