SERVICE AGREEMENT

THIS IS A LEGAL AGREEMENT. BY ACCESSING OR OTHERWISE USING ANY SERVICES OR PRODUCTS PROVIDED, IN WHOLE OR IN PART, BY G.I.S., INC. d/b/a VIRTUWORKS (“VENDOR”), YOU (“CUSTOMER”) ACCEPT AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”). PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. VENDOR AND CUSTOMER IS EACH A “PARTY” AND COLLECTIVELY WILL BE REFERRED TO AS THE “PARTIES”.

THESE TERMS MAY BE AMENDED BY VIRTUWORKS FROM TIME TO TIME WITHOUT NOTICE TO YOU. YOU CAN REVIEW THE MOST CURRENT VERSION OF THESE TERMS AND CONDITIONS AT ANY TIME AT THIS LOCATION.

WHEREFORE, Vendor is in the business of providing Services (as defined below) and Customer wishes to retain Vendor for some or all of its Services;

WHEREFORE, in performing the Services, Vendor will use reasonable efforts to timely provide the resources required pursuant to the terms of this Agreement;

THEREFORE, in consideration of the commitments set forth below, the adequacy of which consideration the Parties hereby acknowledge, the Parties agree as follows.

  1. DEFINITIONSThe following capitalized terms shall have the following meanings whenever used in this

1.1.       "Authorized Users" means any company or individual who uses the System on Customer’s behalf or through Customer’s account or passwords, including without limitation Customer’s Clients, and their employees and representatives, each of which has been authorized to access and use the System by Customer and identified to Vendor, as required in this Agreement. Any improper use of the System by Authorized Users will be sole responsibility of the Customer.

1.2.       “Casual Services” means those services that are not Managed Services, Cloud Services, or Project Services and are provided in response to requests from Customer’s authorized representative(s) for which: a) the scope has been estimated by Vendor to be less than eight (8) hours, but not limited to eight (8) hours; b) the requirements are, in Vendor’s sole opinion, well and clearly defined; and c) no project plan or functional specification is deemed necessary by Vendor. Casual Services are performed by Vendor on a time and materials basis in accordance with Vendor’s hourly rates for staff in effect at that time. Examples of Casual Services may include requests for telephone support or on-site consulting services less than one day in duration. It is Customer’s responsibility to specify and communicate to Vendor the identity of Customer’s authorized representative(s).

1.3.       “Cloud Components” means such elements of the System as Vendor hosts on its infrastructure pursuant to this Agreement.

1.4.       “Cloud Services” means those cloud services Vendor may provide. Use of Vendor’s infrastructure and/or services constitutes acceptance and warrants Customer’s compliance with the terms and conditions set forth herein and as may be modified or updated from time to time on Vendor’s website. Under these terms, Customer’s access of Vendor’s network is an acknowledgement that Customer has read and understood the terms, and that Customer agrees to be bound by such terms and conditions. If Customer does not wish to be bound by such terms and conditions, Customer should not proceed to place any information of any kind on Vendor’s networks, in any way, including but not limited to transferring files, synchronizing email, or making configuration changes via Vendor’s control panel.

1.5.       “Customer’s Clients” means any of Customer’s clients or customers or other third parties Customer gives access to the System, including without limitation such companies’ employees and representatives.

1.6.       “Customer Data” means data in electronic form managed or stored by the System that belong to or are owned by Customer, including without limitation data related to Customer’s Clients, other Authorized Users, and Customer’s Clients’ own customers. Customer Data shall include any and all information, data, materials, works, expressions or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Customer or any Authorized User or Customer’s Clients or for Processing by or through the System, or (b) collected, downloaded or otherwise received by Vendor or the System for Customer or any Authorized User or Customer’s Clients pursuant to this Agreement or at the written request or instruction of Customer or such Authorized User or Customer’s Clients. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Customer Data are themselves also Customer Data. The Customer is the owner of all Customer Data.

1.7.       “Customer’s Software” means software provided by the Customer, for which the Customer paid a valid vendor license, which shall be installed by Vendor, fully functioning and accessible on the Cloud Components.

1.8.       “Documentation” means Vendor's standard manual prepared for customers related to use of the System.

1.9.       “Licensed Software” means such elements of the System provided by the Vendor.

1.10.    “Managed Services” means a predefined, proposed and agreed to set of IT services provided by the Vendor and billed to the Customer on a flat-rate, monthly basis.

1.11.    “Privacy Policy” means Vendor’s privacy policy, as set forth in its website, at https://www.virtuworks.com/privacy-policy/ pertaining to each Service, which may be amended from time to time.

1.12.    "Process" means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. "Processing" and "Processed" have correlative meanings.

1.13.    “Project Services” means those services that will be provided in accordance with separate statements of work (“Statement of Work”) signed by both Vendor and Customer. A Statement of Work will not be effective unless signed by both Vendor and Customer. Examples of Project Services may include services in connection with pre-implementation plans, implementation services, training, custom modifications and technical reviews. Each Statement of Work will include the following:

  • A description of the Project Services to be provided and specifications for any deliverables, if applicable for the project
  • The fees for the Project Services
  • An estimated timetable for the Project Services

A statement referencing this Agreement and confirming that the Statement of Work will be attached to and made a part of this Agreement.

1.14.  “Services” means individually or collectively Cloud Services, Casual Services, Managed Services, and/or Project Services, as each is defined herein.

1.15.  “SLA” means Vendor’s standard service level agreement for Managed Services and Cloud Services attached as Attachment A-1 and A-2, respectively.

1.16.  “System” means that collective hardware and software components that makeup the Customer’s cloud account as hosted on Vendor’s infrastructure and accessed remotely, via the Cloud.

  1. DESCRIPTION OF SERVICES.

2.1. Use of the System. Provided Customer is in compliance with the terms and conditions defined herein, Customer shall be permitted to access and use the Cloud Components provided by the Vendor’s IT infrastructure. Vendor will use reasonable efforts to provide Customer with all hardware resources, software, features and functions proposed and agreed upon between the two Parties.

2.2. Service Levels. Vendor shall provide the service levels and remedies listed in the SLA for any failure of the System listed in the SLA.

2.3. Documentation. Customer may reproduce and use the Documentation during the term if this Agreement solely as necessary to support Authorized Users’ use of the System.

2.4. System Revisions. Vendor may revise the SLA or the features and functions of the Cloud Components at any time, provided no such revision materially reduces features or functionality provided pursuant to this Agreement.

2.5. Customer’s Clients. Customer may authorize Customer Clients to access and use the System in such numbers and according to such restrictions as are set forth in this Agreement. Customer shall provide complete name and contact information for each proposed Customer Client upon or before providing such access, and update such information as soon as it become aware of a change.

2.6. License. Vendor hereby grants Customer a nonexclusive license to reproduce and use the Licensed Software, in such quantities as proposed and agreed to by the two parties, as necessary for Customer’s internal business purposes and solely as a component of the System.

2.7. Provision of Managed Services. Vendor shall provide the Managed Services, and Customer shall provide any assistance and cooperation necessary or convenient to facilitate the Managed Services.

2.8. Service Requests. Should Customer experience any issues or problems with the Services, Customer shall follow the process as established by Vendor, which includes making a service request with Vendor.  The agreed upon uptime and downtime of the Cloud Services provided shall be as provided in Attachment A-1.  The level of service request and response time for resolving such service request as it relates to Managed Services shall be as provided in Attachment A-2.

2.9. Scheduled Downtime. Vendor shall notify Customer at least 24 hours in advance of all scheduled outages of the System in whole or in part ("Scheduled Downtime"). All such scheduled outages shalllast no longer than four hours.

2.10.            System Support. Vendor shall continuously monitor, maintain, upgrade, and manage the System to ensure it meets or exceeds SLA requirements. Vendor shall monitor and respond to System malfunction or performance degradation, proactively identify and remedy deficiencies and provide Customer notice of problems together with Vendor’s corrective plan or action and inform what steps will be taken to avoid recurring problems.

 

  1. TERMS OF CLOUD SERVICES.

3.1. Authorized User Conduct. Cloud Services and the System may only be used for lawful purposes. Any use of Cloud Services or any use of the System which violates any local, state, federal, or international laws which may apply to Vendor, Customer’s local jurisdiction, or any jurisdiction that Customer may be subject to is strictly prohibited. While using the System, Customer and its Authorized Users may not: a) Restrict or inhibit any other user from using and enjoying the Internet; b)Post or transmit any unlawful, threatening, abusive, libelous, defamatory, or otherwise objectionable information of any kind including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws; c) Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component; or d) Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material).

3.2. Indemnification. Customer agrees to indemnify, defend, and hold harmless Vendor from any and all liability, penalties, losses, damages, costs, expenses, attorneys’ fees, causes of action or claims caused by or resulting indirectly from Customer and its Authorized Users’ use of the Cloud Services which damages either Customer, Authorized Users, Vendor, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with Customer’s System, including but not limited to domain name selection and Web site content.

3.3. ECPA Notice. Vendor reserves the right to monitor any and all communications through or with Vendor’s infrastructure. Customer agrees that as to Vendor’s provision of Services, there is no expectation of privacy, and the System is not considered a “secure communications medium” or “protected computer” for the purposes of the Electronic Communications Privacy Act (“ECPA”) or any other similar or related federal or state law.

3.4. No Interference with Operation of System. Customer agrees not to maliciously or intentionally interfere with the proper operation of the System including but not limited to defeating identification procedures, obtaining access beyond that which Customer is authorized for, and impairing the availability, reliability, or quality of Cloud Services for other customers. Customer further agrees not to interfere with the proper operation of other systems reachable through the Internet including any attempt at unauthorized access. Customer agrees to follow the acceptable use policy of any network or service Customer connects to. Customer agrees to adhere to system policies as published online by Vendor, including restrictions on Cloud Services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service at Vendor. Customer agrees to abide by any and all future Vendor policy decisions.

3.5. Backup of Data. Except as may be otherwise provided in a Managed Services agreement, Customer’s use of the Cloud Services is at its sole risk. While Vendor may backup its system (which may include Customer Data) from time to time, Vendor is not responsible for Customer Data. Customer agrees to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Vendor’s infrastructure.

3.6. Transmittal of Materials. Customer agrees not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of Vendor or any other service with reference to Cloud Services obtained through Vendor, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as “spamming” is strictly prohibited and may cause Customer’s Cloud Services to be terminated immediately and without warning and Customer will be held fully responsible for any damages to Customer, Vendor, or any other party or parties resulting from any such conduct.

 

  1. CUSTOMER DATA & PRIVACY.

4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to execute this Agreement and the Purpose (as defined below); and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except its subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer advance notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure.

4.2. Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to this Agreement or recommended or referred to through the System or by Vendor’s

4.3. Data Accuracy. Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Authorized Users.

4.4. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 90 days or more. Should Customer request that Vendor store the Customer Data beyond 90 days and Customer’s account is not delinquent, Customer shall pay to Vendor in advance, Vendor’s then prevailing data storage fee.

4.5. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Vendor’s computers or other media, any data (“Excluded Data”) that is prohibited by or violates any federal and state laws (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

  1. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

5.1. Acceptable Use.

  1. a) Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except Customer’s Clients as specifically authorized by this Agreement; (b) provide System passwords or other log-in information to any third party, except Customer’s Clients as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that Vendor reasonably suspects any breach of the requirements of this Section 5.1, including without limitation by Authorized Users, Vendor may suspend Customer’s access to the System. In the event that Vendor reasonably suspects any breach of this Section 5.1 that is or may result in a security threat to the System as stated above or otherwise, may threaten Customer Data, or may result in a security threat to other customer(s) or their data that is believed to be caused by the Customer, Vendor may immediately suspend the Customer’s access to the System, and may, at its option, elect to terminate Customer’s access to the System after providing Customer with written notice 7 days in advance.
  2. b) Vendor shall not: (a) give access to any third parties to the System; (b) provide System passwords or other log-in information to any third party, except as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; or (d) access the System in order to gather Customer’s information or data of any nature. In the event that Customer reasonably suspects any breach of the requirements of this Section 5.1, including without limitation by Authorized Users, Customer may terminate the Agreement by providing Vendor thirty (30) days advance written notice that provides a reasonable description of the justification for the termination.

5.2. Security. Except as may be otherwise provided in a Managed Services agreement, Customer agrees that as it relates to Cloud Services, Customer is solely responsible for its own security.  Customer further agrees that if it believes the security of its System has been compromised in any way, it will notify Vendor immediately in writing by email and registered or certified mail, return receipted, to Vendor, 3850 Bird Road – Suite 501 Coral Gables, FL 33146. Customer shall be held fully responsible for any misuse or compromise to its System for which Vendor is not properly notified. Customer agrees that if any security violations are believed to have occurred in association with Customer’s System, Vendor has the right to suspend access to the System pending an investigation and resolution. Customer also agrees that Vendor has the right to cooperate in any government or legal investigation regarding any aspect of Vendor’s Cloud Services, including Services sold to Customer. Any use of Vendor’s system to engage in software piracy or other violations of law will result in System suspension and be immediately reported to the appropriate authorities.

5.3. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

5.4. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.

5.5. Customer’s Clients & Other Users; System Access. Customer is responsible and liable for and indemnifies Vendor for: (a) Customer’s Clients, Authorized Users, and any other user’s use of the System, including without limitation unauthorized user’s conduct and any Authorized User’s conduct that would violate this Agreement; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.

5.6. Identification Information. Customer agrees that as the person legally responsible for use of the Services, Customer and any Authorized Users are at least 18 years of age. Customer agrees to supply Vendor with a current and truthful name, postal address and telephone number of all its Authorized Users for Vendor’s records, and Customer has a continued obligation to keep this information current. Customer also agrees that it is an authorized user of any credit card that Customer may supply to Vendor.

  1. IP.

6.1. Vendor IP Rights in the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components, except to the limited extent that this Agreement specifically sets forth Customer license rights to Licensed Software. Customer recognizes that the System and its components are protected by copyright and other laws. During the term of this Agreement, Customer may reproduce and use the Documentation solely as necessary to support Authorized Users’ use of the System.

6.2. Customer IP Rights in the System. Customer retains all right, title, and interest in and to any data and information stored, or Processed by the System, that belong to or are owned by Customer, including without limitation all software developed and fully paid, logos, and trademarks reproduced through the System that belong to or are owned by Customer. This Agreement does not grant Vendor any intellectual property license or rights in said set of Customer’s Data. Except to the extent necessary for Vendor to maintain the System, including but not limited to the reproduction of Customer Data in backups, or as may be required by applicable law or by proper legal or governmental authority, Vendor may not reproduce and use the Customer’s Data except if expressly authorized by Customer in writing.  Vendor shall give Customer advance notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure

  1. CONFIDENTIAL INFORMATION.Confidential Information” refers to the following items the Parties disclose to each other: (a) any document Parties mark “Confidential”; (b) any information Parties orally designate as “Confidential” at the time of disclosure, provided the other disclosing Party confirms such designation in writing within 2 business days (c) any Customer data stored, processed or transiting in the System. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Parties’ possession at the time of disclosure; (ii) is independently developed by Parties without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Parties’ improper action or inaction; or (iv) is approved for release in writing by the relevant Party.

7.1. Nondisclosure. Parties shall not use the other’s Confidential Information for any purpose other than operation the System to run each Party business (the “Purpose”).

  1. a) Customer: (i) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Section 7; and (ii) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent.
  2. b) Vendor: (i) shall not disclose Confidential Information to any employee or third-party of Vendor unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Vendor with terms no less restrictive than those of this Section 7; and (ii) shall not disclose Confidential Information to any other third party without Customer’s prior written consent.

Without limiting the generality of the foregoing, Parties shall protect Confidential Information with the same degree of care it uses to protect their own confidential information of similar nature and importance, but with no less than reasonable care. One Party shall promptly notify the other Party of any misuse or misappropriation of Confidential Information that comes to each Party’s attention. Notwithstanding the foregoing, each Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. One Party shall give the other Party prompt notice of any such legal or governmental demand.

7.2. Injunction. Each Parties agree that breach of this Section 7 would cause an irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the damaged Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) shall survive termination of this Agreement. Upon termination of this Agreement, Parties shall return all copies of Confidential Information to each other or certify, in writing, the destruction thereof.

7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Parties will retain all right, title, and interest in and to all Confidential Information.

  1. REPRESENTATIONS & WARRANTIES.

8.1. From Vendor.

  1. a) Re IP Rights in the System. Subject to the next sentence, Vendor represents and warrants that it is the owner or the recipient of a valid license to the software or hardware necessary to provide the Services and establish the System for Customer, in accordance to the terms of this Agreement. Vendor’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Section 9.1 below. In the event of a breach of the warranty in this Section 8, Vendor, at its own expense, will promptly, at its sole option, take the following actions: (i) secure for Customer the right to continue using the System; (ii) replace or modify the System to make it non-infringing; or (iii) terminate the infringing features of the service.
  2. b) Vendor represents and warrants that (a) Vendor has the power and authority to enter into and fully perform its obligations under this Agreement; (b) all Managed Services to be provided will be performed in a professional, industry standard, competent and timely manner, and (c) Vendor’s System shall perform materially as proposed. VENDOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM OR THE SERVICES, AND FURTHER EXCEPT AS STATED HEREIN, EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. NO ADVICE OR INFORMATION GIVEN BY VENDOR OR ITS SUBSIDIARIES, AFFILIATES, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL CREATE ANY WARRANTY.

8.2. From Customer.

  1. a) Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable
  2. b) Re Customer’s Clients. Customer represents and warrants that, to the best of its knowledge Customer will accurately identify each Customer’s Client and Authorized Users and will not provide any inaccurate information about a Customer’s Client or Authorized Users to or through the System.
  3. INDEMNIFICATION.

9.1. From Vendor. Vendor shall defend and indemnify Customer and Customer’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right by the System. Vendor’s obligations set forth in this Section 9 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) use of the System in combination with hardware or software not provided by Vendor; (c) the Customer’s Data; or (d) any modification to the System by Customer or any person acting on behalf of Customer, including Authorized Users, that is not Vendor.

9.2. From Customer. Customer shall indemnify and defend Vendor and Vendor’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Authorized Users, any of Customer’s users (authorized or unauthorized), or by Customer’s Clients; (b) claims that use of the System through Customer’s account, including by Customer’s users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising.

9.3. Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) under this Section: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent that the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party’s “Associates” are its officers, directors, shareholders, employees, parents, subsidiaries, affiliates, agents, successors, and permitted assigns.)

  1. LIMITATION OF LIABILITY.

10.1.            Cap. The maximum and cumulative amount of Vendor’s liability arising out of related to this Agreement or breach thereof shall not exceed the amount of fees paid by Customer to Vendor in the six months that preceded the termination of this Agreement. Subject to this foregoing cap, Vendor’s liability arising out of or related to this Agreement (including any delays, failures, interruptions, maintenance, or repairs of the System), termination of the Agreement, or otherwise (collectively “System Failure”), shall not exceed the amount of $100.00 per day (or the pro rata portion thereof) that there is a System Failure resulting from the action of Vendor.

10.2.            Limitation of LiabilityCUSTOMER ACKNOWLEDGES THAT ITS EXCLUSIVE REMEDY AND VENDOR’S SOLE LIABILITY TO CLIENT, FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO, AT VENDOR’S ELECTION, EITHER RE-PERFORMANCE OF THE SERVICES, OR REFUND OF A PRORATA PORTION OF THE FEES PAID TO VENDOR BY CUSTOMER UNDER THIS AGREEMENT, AS EXPLAINED AND LIMITED BY THE PRECEDING PARAGRAPH. THE FOREGOING LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE. IN NO EVENT SHALL VENDOR, OR ITS SUBSIDIARY, OR AFFILIATES, BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY CUSTOMER OR ANY THIRD PARTY, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS, INJURY, DAMAGE, OR THIRD-PARTY CLAIM, ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS HEREUNDER,WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE.   

  1. TERMINATION.

11.1.            Termination without Cause. Either Party may terminate this Agreement at any moment during its validity by providing written notice for whatsoever reason, by providing 60 days’ written notice.

11.2.            Effects of Termination. Upon any termination of this Agreement, Customer shall cease all use of the System except as provided in the next sentence. Provided that Customer’s account is current and has paid all invoices for fees, Vendor will use reasonable efforts to the extent necessary to assist the Customer’s incoming service provider, in order to assist with the transfer of all Customer’s Data and software to a different IT infrastructure.  Customer shall be responsible for all fees and costs associated with the transfer of Customer’s Data to a different IT infrastructure. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 6 (IP), 7 (Confidential Information), 2 (Warranty Disclaimers), 9 (Indemnification), and 10.2 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

  1. MISCELLANEOUS.

12.1.            Expenses. Except as expressly included under Managed Services, Customer will promptly reimburse Vendor, upon written request therefore, for all actual travel and other expenses incurred by Vendor in connection with, and in furtherance of, its performance of the Services. Expenses include, as applicable, mileage, parking, out-of-town travel costs, report preparation supplies, and allocated charges to cover the costs of technology, fax, telephone and mail/delivery services.

12.2.            Invoicing and Payment. Fees for the Services will be due and payable when invoiced or, if the invoice specifies payment terms, pursuant to the payment terms specified in the invoice. If Customer’s account is past due and Vendor has notified Customer, verbally or in writing, of the past due balance, Vendor may, without seven (7) calendar days’ notice, cease providing any and all further Services without any liability for interruption of pending work or breach of this Agreement. Customer agrees that all fees for Cloud Services are non-refundable once setup is completed. Customer agrees that until and unless Customer notifies Vendor of its desire to cancel any or all Services received, those Services will be billed on a recurring basis. Customer agrees that if it is paying by credit card, prepayments will be billed and charged automatically, and that Vendor may apply the amount due to the provided card at any time.

12.3.            Taxes. The fees quoted by Vendor do not include taxes. If Vendor is required to pay any federal, state or local taxes as result of the performance of the Services pursuant to the terms of this Agreement, such taxes will be billed to, and promptly paid by, Customer. Notwithstanding the foregoing, Vendor will be solely responsible for the payment of all taxes assessed against Vendor as a result of the income received from Customer under this Agreement.

12.4.            Billing Disputes. Customer must notify Vendor in writing of any disputed charges for Services or otherwise  within fourteen (14) days of the charge being posted to its account or invoice.  Notices must include all relevant information, including but not limited to account number, amount in dispute, reasons for the dispute, a contact number and email address for the account holder and any other detail sufficient for Vendor to appropriately evaluate the dispute. To the extent Vendor determines that a charge adjustment is warranted, Vendor will credit Customer’s account. If Customer fails to timely notify Vendor of a charge or invoice dispute as noted above (within 14 days), Customer shall have waived all rights to bring any claim or defense regarding the particular charge or invoice and shall forever be foreclosed from doing so.

12.5.            Staffing Decisions. Vendor shall be solely responsible for staffing decisions with respect to its personnel and the performance of Services. Vendor reserves the right to assign, re-assign and substitute its personnel with personnel with comparable qualifications at any time during the term of this Agreement.

12.6.            Non-Solicitation. During the term of this Agreement and for a period of two (2) years thereafter (collectively, the “Non-Solicitation Period”), Customer understands and agrees that Customer will not solicit, entice, hire, employ, engage, or seek to employ or engage any employee, partner, principal or independent contractor employed or engaged by Vendor during the Non-Solicitation Period (each individually a “Person”) without the express written consent of Vendor. Any violation of this Paragraph that will be considered a material breach of this Agreement. In the event of a violation of this Paragraph, in addition to any other remedies Vendor may be entitled to and Customer agrees to pay Vendor, immediately upon such Person’s departure from Vendor or such Person’s employment or association with Customer, a sum equal to three (3) times the annual aggregate compensation, monetary and dollar value of non-monetary, payable to the applicable Person by Vendor immediately prior to such breach. Vendor and Customer each acknowledge and agree that the foregoing payment is not intended to constitute liquidated damages or a penalty, but instead is intended to provide Vendor with a sum of money in which to commence to seek a replacement for said Person.

12.7.            Email Transmissions. In connection with Vendor’s performance of the Services, Vendor may communicate, from time to time, with Customer or others via email transmission. Customer acknowledges and accepts, and waives any claim in opposition hereof, that Vendor cannot guaranty, and does not warrant, that the email transmissions from Vendor: (i) will not be intercepted and read, disclosed or otherwise used or communicated by a third party; or (ii) will be delivered to each of the parties to whom they are directed and only such parties. In furtherance thereof, Vendor specifically disclaims and hereby waives any liability or responsibility whatsoever for intercepted, disclosed or communicated email transmissions, and with respect to the unauthorized use or failed delivery of email transmissions, transmitted by Vendor or its personnel in connection with the performance by Vendor of the Services. FURTHERMORE, Vendor SPECIFICALLY DISCLAIMS AND CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT Vendor SHALL HAVE NO, LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY LOSS OR DAMAGE TO ANY PERSON OR ENTITY, INCLUDING, WITHOUT LIMITATION, CUSTOMER, RESULTING, IN WHOLE OR IN PART, FROM THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, DIRECT OR INDIRECT OR SPECIAL DAMAGES, SUCH AS LOSS OF SALES OR ANTICIPATED PROFITS OR DISCLOSURE OR COMMUNICATION OF CONFIDENTIAL OR PROPRIETARY INFORMATION.

12.8.            Service Rates. Services (other than Managed Services) are billed in half hour increments. Travel and preparation time are billed at the normal hourly rate. These rates apply between 8:30 a.m. and 6:30 p.m. Eastern Time, Monday through Friday, except Holidays. If travel is in excess of one hour driving time each way, day rates apply, and will be quoted for the specific engagement. Day rate services must be provided during normal business hours (8:30 a.m. to 6:30 p.m.).  Services (other than Managed Services) provided outside these normal business hours will be billed according to Vendor’s standard overtime rates. Rates quoted do not include expenses related to travel, which will be billed as incurred. Premium rates apply to after-hours service (other than Managed Services), according to the following table:

HOURS OF SERVICE RATE MINIMUM
Weekdays: 6:30 pm – 10:00 pm 1.5 times service rate 1 hour
Weekends: 8:30 am – 10:00 pm 2.0 times service rate 1 hour
Every day: 10:00 pm – 8:30 am 2.0 times service rate 1 hour

 

12.9.            Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor is or will be considered an employee of Customer.

12.10.         Notices. All notices to the Vendor given pursuant to this Agreement will be in writing and will be delivered or sent by (a) first class mail, registered or certified, return receipt requested, postage pre-paid; or (b) an international express mail, or national express courier with a tracking system. Notices will be deemed given on the day actually received by the Vendor. Notices shall be directed to the Vendor as follows:

To Vendor:

Virtuworks

Attn:  Omar Armenteros

3850 Bird Road, Suite 105

Coral Gables, FL 33146

Contact Name: Omar Armenteros

Telephone: Main: 305.265.0447

Email: help@virtuworks.com

 

12.11.         Force Majeure. In no event will either Party be liable or responsible, or be deemed to have defaulted under or in breach of this Agreement for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such delay or failure is caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond such party’s reasonable control provided that such Party has taken commercially reasonable efforts to promptly overcome the delay or failure. Customer may terminate this Agreement by written notice to Vendor if a Force Majeure Event affecting Vendor's performance hereunder continues substantially uninterrupted for a period of thirty (30) calendar days or more. Notwithstanding the foregoing or any other provisions of this Agreement no Force Majeure event shall modify or excuse the Parties’ obligations as set forth in Section 3.5 (Backup of Data), Section 7 (Confidential Information), Section 9 (indemnification), and Section 10 (Limitation of Liability).

12.12.         Assignment, Subcontractors & Successors. Neither Party may assign, delegate, or transfer this Agreement or any of its rights or obligations hereunder without the other Party’s express written consent which may not be unreasonably withheld.

12.13.         Severability; Enforceability. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity; provided, however, if such invalid or unenforceable provision may be modified so as to be valid and enforceable as a matter of law, such provision will be deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law. The parties acknowledge and agree that this Agreement allocates risk between them as authorized by any applicable law and the amount of the fees charged for the Services reflects this allocation of risk and other limitations of liability contained in this Agreement.  If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall remain in full force and effect.

12.14.         No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.15.         Governing Law; Construction. This Agreement has been executed and delivered in, and shall be governed by, construed under, and enforced in accordance with, the laws of the State of Florida, without respect to its conflict of laws principles. The parties agree that this Agreement was prepared jointly by each of them and shall be construed on a parity as between the parties.  There shall be no canon of con­struction for or against any party by reason of the physical preparation of this instrument. Any legal action of whatever nature by or against the Parties arising out of or related in any respect to the Agreement shall be brought solely to that jurisdiction.

12.16.         Jurisdiction & Venue. Jurisdiction and venue for litigation or arbitration of any dispute, controversy or claim arising out of or in connection with this Agreement, shall vest only in Miami-Dade County, Florida.  The parties expressly submit and consent in advance to such jurisdiction in any action or proceeding commenced in Miami-Dade County, Florida, and the parties hereby waive any objection which either may be based upon the lack of personal jurisdiction and hereby consent to the granting of such legal or equitable relief as is deemed appropriate by any such court.  Furthermore, the parties waive, to the extent permitted under applicable law, any right each may have to assert the doctrine of “forum non conveniens” or to object to venue to the extent any proceedings are brought in accordance with the paragraph.  The parties hereby waive personal service of any summons or complaint or other process or papers to be issued in any action or proceeding involving any such controversy and hereby agrees that service of such summons or complaint or process may be made by registered or certified mail, Federal Express, or UPS at the address appearing herein.

12.17.         Arbitration. Any and all disputes, claims or controversies arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including but not limited to all claims for injunctive or equitable relief and the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Miami, Florida before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction.

12.18.         Waiver of Jury Trial. It is understood that this Agreement is subject to arbitration. However, in the event there were to be litigation, erroneously, by agreement, or otherwise, each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

12.19.         Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.

12.20.         Conflicts. In the event of any conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) any Attachment to this Agreement.

12.21.         Headings. The headings herein are for convenience of reference only and shall not be deemed to be part of the substance of this Agreement.

12.22.         Entire Agreement. This Agreement including its Attachments sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous or separate communications.

12.23.         Amendment. This Agreement may not be amended except through a written agreement signed by authorized representatives of each party.

12.24.         No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

12.25.         Joining of Disputes. NO DISPUTE OR CLAIM MAY BE JOINED WITH ANOTHER LAWSUIT OR IN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON.  BY AGREEING TO THIS AGREEMENT OR USING VENDOR’S SERVICES, CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO BRING ITS CLAIM ON A CLASS-WIDE BASIS OR IN THE FORM OF A CLASS ACTION.

12.26.         Time of the Essence. Vendor and Customer acknowledge and agree that time is of the essence with respect to its obligations under this Agreement and that timely performance of all such obligations, including all timetables and other requirements of this Agreement, is strictly required.


 

ATTACHMENT A-1

Service Level Agreement (SLA) as to Managed Services

Prioritization

In order to address Customer’s service requests in a timely manner as it relates to the Managed Services, Vendor provides prioritization based on both urgency and impact.

Level of Severity is a measure of Authorized Users affected by the incident, and is classified by High (H), Medium (M) and Low (L) based on the following definitions:

Level of Severity definitions

High (H)               Customer’s whole company is affected;

Medium (M)         Departments or large group of Users are affected

Low (L)                One Authorized User or a small group of Authorized Users is affected

Business Impact is the measure of extent the Incident caused by the Incident before it can be resolved. Business Impact is classified by High (H), Medium (M) and Low (L) based on the following definitions.

Business Impact definitions

High (H)               Critical-Major business processes are stopped

Medium (M)         Business is degraded, but there is a reasonable workaround

Low (L)                More of an irritation, than a stoppage

In accordance to the Priority Calculation Table below, priority is measured from P1 (Critical) to P5 (Planning) using Urgency & Impact:

Level of Severity
High Medium Low
Business Impact High 1 2 3
Medium 2 3 4
Low 3 4 5

 

SLA - Operational Business Hours: 8:30 A.M. TO 6:30 P.M.

 

Service Level Matrix

Priority Classification Response* Resolution Plan* Resolve By*
1 Emergency 1 hr 4 hrs 8 hrs
2 Critical 2 hrs 8 hrs 16 hrs
3 High 2 hrs 8 hrs 16 hrs
4 Medium 2 hrs 8 hrs 16 hrs
5 Low 2 hrs 8 hrs 16 hrs

 

Customer’s sole and exclusive remedy for Vendor’s failure to meet the above service levels shall be that Customer may terminate the Agreement after providing Vendor with 30 days’ advance written notice.

 

ATTACHMENT A-2

Service Level Agreement (SLA) as to Cloud Services

Vendor will host and maintain the System 24 hours per day, 7 days per week, and 365 days per year. Vendor will keep the System fully functional and available to its Authorized Users (including Customer and Authorized Users) 99.8% of the time with the exception of scheduled maintenance pre-approved by the Customer (the “Uptime”).  If Vendor does not satisfy the Uptime level established above, Vendor shall credit Customer amounts as set forth below:

  • If Uptime falls below 99.8% for any given month, then for that month, Vendor shall credit Customer the percentage of downtime beyond 0.2%. By way of example only, if the downtime for September is a total of 4%, then Vendor will credit the monthly fee Management Services for September by 3.8% of that monthly amount; if the monthly fee was $100, Customer would receive a credit of $3.80 for the month of September.
  • If Uptime falls below 98% for any three months of a 12 month rolling period, Vendor shall be considered in material breach of this Agreement and Customer may, but shall not be obligated to, terminate this Agreement for cause by delivering written notice to Vendor.

Notwithstanding the foregoing, the Uptime percentages agreed to by Vendor and Customer, presume and are contingent on the Services being provided at Vendor’s datacenter and infrastructure and equipment.  Customer acknowledges that should Services be provided to Customer by any person that is not Vendor or with any non-Vendor equipment, Vendor shall not be obligated or to (or otherwise liable to Customer for failure to) meet the Uptimes set forth herein and Customer shall not be entitled to any credits as set forth herein.

The System is not considered to be in Uptime in the event of performance degradation or inoperability, in whole or in part if the level of severity for Cloud Services is High and the level of impact is High.

To the extent Customer claims that it is entitled to any credits resulting from a claimed System Failure related to the Uptime requirements set forth herein (“Uptime Failure”), Customer shall notify Vendor in writing within 7 calendar days of the alleged Uptime Failure. Vendor will credit the following month’s statements if it agrees to the percentage/hours/days of Uptime Failure claimed by Customer. Should Vendor disagree to the alleged percentage/hours/days of Uptime Failure, Vendor will provide Customer with a report rebutting Customer’s claims of Uptime Failure within 7 calendar days (if Vendor fails to provide Customer with the report, Customer will be entitled to the claimed credit). Should Customer fail to claim any amounts to be credited within 7 calendar days of the alleged service interruption for Uptime Failure, Customer shall be forever foreclosed from doing so.