Downloadable Terms and Conditions
The Proposal and related Attachment(s) (collectively “Agreement”) is effective upon execution (“Effective Date”) and is entered into by and between Client and Custom Computer Specialists/Info Solutions, with offices at 70 Suffolk Court, Hauppauge, NY 11788 and 920 Justison Street Wilmington, DE 19801 (“Custom”). Custom and Client may be referred to individually as “Party” and collectively as “Parties”.
WHEREAS Custom sells and / or resells a variety of software, procurement, installation, integration, hosting, technical support, and services for computer systems of Client; and WHEREAS, Client requires such products and services and desires to engage Custom to provide the products and services described in this Agreement and in accordance with the terms described herein. NOW, THEREFORE, in consideration of the mutual promises.
1.0 Term: This Agreement shall commence upon the Effective Date and continue for three years (hereafter “Initial Term”) unless otherwise specified in the above agreement. Custom will assess a 3% increase to the monthly pricing each year. At the end of this Initial Term, the agreement will renew for successive twelve (12) month terms (each a “Renewal Term”) with up to a 7% increase on each yearly anniversary of the Effective Date.
2.0 Termination: This Agreement shall terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership, or bankruptcy proceedings, (ii) upon either Party’s making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business, except that termination shall not be available pursuant to a merger, or a sale of all or substantially all of its business. In the event of any breach of this Agreement, the non-breaching Party may terminate this Agreement by giving thirty (30) days’ prior written notice to the breaching Party; provided, however, that this Agreement shall not terminate if the other Party has cured the breach, to the satisfaction of the non-breaching party before the expiration of such thirty (30) day period.
Either Party may terminate this Agreement at any time by written notice to the other Party not less than ninety (90) days before the effective date of such notice. In the event this Agreement is terminated within the Initial Period, Client agrees to pay a cancellation fee to cover the startup costs incurred by Custom. The cancellation fee for Managed Support excluding any subscription-based services (including Managed Backup,) will be calculated as 80% of the monthly purchase price multiplied by 24 months less the cumulative monthly fees already paid by the Client. There is no cancellation fee for Managed Support beyond the first 24 months of the agreement.
Notice for cancellation of any subscription-based services must be made 90 days before any renewal of these services. In the event of the Client canceling subscription-based services with an effective date before a renewal date, the client will pay a cancellation fee calculated as 100% of the monthly purchase price for the backup services multiplied by 12 less the monthly fees already paid by the client. This cancellation fee is in effect for the initial term and all renewal terms to cover Custom’s up-front payment of these subscription-based fees. If the client desires, Managed Support can be canceled, and Custom can continue to provide the subscription-based services under a separate Scope of Work until the subscription expires.
Termination shall not, however, relieve either Party of payment obligations incurred before the termination or for any fees which would accrue after termination.
3.0 Pricing and Payment: Client agrees to pay Custom the purchase price as specified in this Agreement and if applicable, agrees to pay any sales tax that may be levied on such purchase price whenever billed. Project based services will be invoiced upon commencement of the project. Payment for monthly services are invoiced on the first of each month. If applicable, all other payments are due within 15-day terms (upon credit approval) from the date of invoice. Credit terms are subject to establishment and maintenance of credit acceptable to and approved by Custom. However, Custom intends to provide credit terms to Client at the outset of this Agreement assuming satisfactory credit underwriting. Custom reserves the right, in its sole discretion, to require cash in advance payment for any purchase. Any payment not received within thirty days of the date of invoice shall accrue interest at the rate of one and one-half percent per month or the maximum rate allowed by law if less, and any associated collection or attorney’s fees. In the event of Client’s non-payment of an invoice when due, Custom reserves the right to immediately suspend service and shipment of any outstanding orders of Customer until payment in full is made of all amounts then due.
4.0 Confidentiality: This Agreement is the confidential property of Custom. The Client agrees that no part of this proposal shall be disclosed to any third party without the prior written consent of Custom. The Client and Custom each agree to keep confidential and not to disclose to any third party any confidential information including trade secrets, business secrets, marketing data, or technical information of the other. A Party may disclose confidential information only to the extent required pursuant to any judicial or governmental order, provided that the disclosing Party gives the owner of the confidential information as much prior notice as is reasonably practicable. Immediately upon (i) the expiration of this Agreement, or (ii) a request by the disclosing Party at any time (which will be effective when received or five (5) days after mailed first class postage prepaid to the receiving Party), the receiving Party will turn over to the disclosing Party all confidential information of the disclosing Party and all documents or media containing any such confidential information and any and all copies or extracts thereof.
5.0 Proprietary Rights: Custom hereby reserves all its rights, title, and interest in its Intellectual Property Rights including, without limitation, all rights, title, and interest in and to all licenses supplied by Custom to Client hereunder.
6.0 DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY: ANY USE BY THE CLIENT OF THE SERVICES PROVIDED UNDER THIS CONTRACT IS AT ITS OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” AND CUSTOM MAKES NO WARRANTIES OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CUSTOM’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID BY THE CLIENT TO CUSTOM FOR THE SERVICES USED BY THE CLIENT FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CUSTOM BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, LOSS OF, OR LOSS OF USE OF, ANY SOFTWARE, DATA, WEB TRAFFIC, OR EMAILS, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER WEB TRAFFIC OR EMAIL, DELAYS OR FAILURE TO DETECT UNDESIRABLE WEB TRAFFIC OR MALWARE, OR WRONGFULLY IDENTIFYING WEB TRAFFIC OR EMAIL FOR FILTERING OR AS CONTAINING MALWARE) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF CUSTOM HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOM DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER ARE ERROR-FREE OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE LIMITED WARRANTY, LIMITED REMEDIES, AND LIMITED LIABILITY UNDER THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES AND CUSTOM WOULD NOT BE ABLE TO PROVIDE THE SERVICES WITHOUT SUCH LIMITATIONS.
7.0 Indemnification: Client agrees to indemnify, defend, and hold Custom harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) any breach by Client of this Agreement; (ii) any taxes arising from the services provided hereunder whether now in effect or imposed in the future (excluding taxes based on Custom’s income); and (iii) claims by third parties arising from Client’s use of the services provided hereunder (excluding claims that the services infringe third party intellectual property rights).
8.0 Recruitment of Personnel: For one year after the expiration of this Agreement, Client and Custom shall not directly or indirectly solicit for employment the other Party’s employees or agents or hire or engage such employee or agent without the prior written consent of the other Party. Notwithstanding this prohibition, should one Party hire the employee or agent of the other within this timeframe without the prior written consent of the other Party, the hiring Party shall pay the other Party as liquidated damages for the loss of such employee or agent an amount equal to twice the hired employee’s annual compensation previously paid by the non-hiring party.
9. GENERAL PROVISIONS:
9.1 Software Updates and Unauthorized Maintenance: Maintaining the systems described above shall include applying all appropriate software and operating system updates (collectively “Updates”). Due to the testing involved to ensure Updates are safe, Custom shall determine when software Updates are appropriate and the timing these Updates will be made available. Client acknowledges that if Client requests Updates that Custom considers inappropriate or instructs Custom to apply such Updates before Custom deems them safe, Custom is not responsible for any failures or disruptions that occur because of these Updates. The Client will be charged at Standard Consulting or Extended Consulting hourly rates for all labor needed to correct any failure or disruption. Furthermore, if Client performs or allows anyone other than Custom to perform any maintenance on any machine/device covered by this contract, Custom is not responsible for any failures or disruptions that occur because of these actions. The Client will be charged at Standard Consulting or Extended Consulting hourly rates for all labor needed to correct any failure or disruption.
9.2 Nature of this Agreement: This Agreement is intended to cover the maintenance of computer operating systems and software only. It is not intended to cover any hardware, materials, equipment, consumables, hardware failures, replacements, or any labor related to projects other than the proper maintenance of operating systems and software. Custom offers other services, including hardware-related labor. Any labor provided outside the scope of this agreement will be billed at Custom’s then-current standard daily rates.
9.3 Governing Law: Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement and to perform the acts required of it hereunder; and (ii) its performance of its obligations under this Agreement shall not violate applicable law or any agreement to which it is a party or by which it is bound. This Agreement and the rights and obligations of parties hereunder shall be governed by and controlled by the laws of the State of New York, applicable to contracts made and performed therein without reference to the applicable choice of law provisions. The Parties agree in good faith to use reasonable efforts to resolve any and all conflicts and controversies between themselves relating to this Agreement informally and amicably before submitting any such matter for judicial resolution. EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY MATTER OR DISPUTE BETWEEN THEM (AND/OR THEIR AFFILIATES) ARISING UNDER THIS AGREEMENT OR OTHERWISE.
9.4 Entire Agreement: This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Party to be charged. In the event any provision of this Agreement will for any reason be held to be invalid, illegal, or unenforceable in any respect, the remaining provisions will remain in full force and effect. If any provision of this Agreement will, for any reason, be determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, such provision will be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the parties as expressed herein.
9.5 Notices: All notices, requests, and other communications called for by this Agreement will be deemed to have been given upon receipt if made by (i) registered or certified US mail, or (ii) by telecopy (confirmed by concurrent written notice sent first class US mail, postage prepaid) to the Parties at their respective addresses as set forth above (or at such other address for a Party as shall be specified by like notice).
9.6 Force Majeure: Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming Party.
9.7 Non-Assignability and Binding Effect: Neither Party shall assign this Agreement to any third party without the prior written consent of the other Party.
9.8 No Third-Party Beneficiaries: The obligations of Custom under this Agreement run only to Client and not to its affiliates, its customers, or any other persons. Under no circumstances shall any other person be considered a third-party beneficiary of this Agreement or otherwise be entitled to any rights or remedies under this Agreement.
9.9 No Waiver: No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
9.10 Headings: The headings used in this Agreement are for convenience only and are not to be construed to have any legal significance.