This TERMS OF SERVICE AGREEMENT (“Agreement”) made and entered into between WorX Solutions Management, LLC (hereinafter “Company”) and you, or if you represent an entity or other organization, that entity or organization (in either case, “Customer”)
1.1 During the Term of this Agreement, Company will provide its Services to Customer in accordance with the Agreement. The Services to be performed, fees and other work particulars shall be more fully described in a Statement of Work(s) (“SOW”), attached hereto as Exhibit A or any other ordering device mutually agreed to by all parties and signed by all parties. Customer understands and acknowledges that Company’s performance is dependent on Customer’s timely and effective performance of any Customer Responsibilities set forth in this Agreement and the applicable SOW.
1.2 Changes to Services. Either party may, at any time, request changes to the SOW by submitting a written change request, which identifies in reasonable detail each of the following:
- Summary of the requested change;
- Why the change is needed; and
- When the change is needed.
Proposed changes to an existing SOW, or the issuance of a new SOW, may impact the project schedule, price, or scope. Company will evaluate Customer‘s change request, considering the feasibility of the change and the impact on other project components. Company will prepare a Change Order documenting the revisions to an existing SOW or issue a new SOW. Changes to the SOW become effective when Customer and Company accept the Change Order in writing. Customer acknowledges that Company shall not be responsible for the impact of recommended modifications contained within a Change Order if Customer decides not to accept a written Change Order and corresponding SOW. In the event of any conflicts or inconsistency, the terms of an executed Change Order shall prevail over those of this Agreement and the applicable SOW.
2.1 The “Term” of this Agreement will commence on the Effective Date and continue until the expiration of the last Service Term, unless earlier terminated in accordance with the Agreement (“Term”).
2.2 Each Service shall have a minimum Service term which begins on the Billing Commencement Date (“BCD”) and continues for the period as both are set forth in the relevant SOW (the “Initial Service Term”). Either party may terminate this Agreement in writing at least thirty (30) days prior to the expiration of the then-current Service Term.
3.1 Termination of Customer for cause by Company will not relieve Customer’s duty to pay for equipment actually shipped, services actually performed, or expenses incurred pursuant to a SOW.
3.2 In addition to the termination right in Subsection 5(a), Company may suspend Service or terminate this Agreement: (a) upon five (5) days notice in the event of any payment default, if such default is not cured within that period; (b) upon notice in the event of any Acceptable Use Policy (AUP-set forth in Exhibit B) violation; or (c) if Customer becomes insolvent, makes an assignment for the benefit of creditors, or if any bankruptcy proceeding is begun by or against Customer. In addition, Company may immediately terminate a Service in the event that it ceases to make such Service generally available to other similar customers.
3.3 If, after the delivery of Service but prior to the conclusion of the applicable Service Term, the Service or this Agreement is terminated either by Company for cause or by Customer for any reason other than cause, then Customer shall be liable for (a) an early termination charge equal to fifty percent (50%) of the Monthly Recurring Charges (MRCs) for the affected Services multiplied by the number of months remaining in the Service (b) the Service charges accrued but unpaid as of the termination date; and (c) any equipment purchases, third party provider charges or out-of-pocket expenses incurred by Company.
4.1 Customer will pay all applicable rates and fees set forth in the relevant SOW. All payments are due as set forth in the applicable SOW in full within thirty (30) days after the date of the invoice (“Due Date”). In addition to the Service charges, Customer shall also pay all applicable federal, state and local taxes and any third party charges pre-approved by Customer (e.g., installation, local access, utilities). Customer may provide Company with a tax exemption certificate (subject to review and acceptance by Company). Any amount not received by the Due Date will be considered past due and subject to interest at the lesser of 1.5% per month or the highest rate permitted by applicable law. Billing for each Service shall commence on the “Billing Commencement Date” as described above.
5.1 Warranty for Service. Company warrants that the Services will be performed in a professional and workmanlike manner in accordance with industry standards and will conform to the written specifications contained in a SOW. This warranty, with respect to Services, will exist for a period of thirty (30) days from the date the Services are completed and accepted by Customer. Customer’s sole and exclusive remedy for Company’s breach of express warranty as contained herein will be to have Company perform the service again or, at Customer’s option, refund the fees for such Services. Any action for breach of warranty must be commenced within two (2) months following the applicable warranty’s expiration.
6. Disclaimer of Warranties.
6.1 EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ANY RELATED EQUIPMENT, SOFTWARE AND OTHER MATERIALS PROVIDED BY COMPANY IN CONNECTION WITH THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ANY RESULTS TO BE ACHIEVED HEREFROM. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM OR THAT ANY SERVICE WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF ANY THIRD PARTY TECHNOLOGY, ANY THIRD PARTY ACTION SUCH AS HACKING, OR ANY ACT OR OMISSION OF THE CUSTOMER, INCLUDING FAILURE TO ENCRYPT, AND COMPANY SHALL HAVE NO RESPONSIBILITY THEREFORE.
7.1 Customer will indemnify, defend and hold Company and its contractors harmless from any and all third party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, or liabilities arising from or related to the use or resale of the Service.
8. Limitation on Liability.
8.1 COMPANY AND ITS THIRD-PARTY VENDORS SHALL NOT BE LIABLE FOR, NOR SHALL YOU MAKE ANY CLAIM FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING WITHOUT LIMITATION, ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA, DAMAGES TO SOFTWARE OR FIRMWARE, OR COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY. THE TOTAL AGGREGATE LIABILITY OF COMPANY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL NET PAYMENTS PAID BY CUSTOMER TO COMPANY FOR THE AFFECTED SERVICE WHICH GIVES RISE TO SUCH LIABILITY IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES.
9.1 Definition of Confidential Information. “Confidential Information” means any non-public information of the parties hereto relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to, and received by, the other party pursuant to this Agreement. Confidential Information includes, but is not limited to, the terms and pricing of this Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of this Agreement by the receiving party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information.
9.2 Neither party shall, without the prior written consent of the other party, use or disclose the Confidential Information (as defined above) of the other party during the Term of this Agreement and for two (2) years following the expiration or termination hereof. Each party will take all reasonable precautions to protect the other party’s Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information. Notwithstanding the foregoing, a party may disclose Confidential Information: (i) to any consultants, contractors, and counsel who have a need to know in connection with this Agreement and have executed a reasonably protective non-disclosure agreement with the disclosing party, or (ii) pursuant to legal process or as required under the Abused and Neglected Child Reporting Act or similar act; provided that, the disclosing party shall, unless legally prohibited, provide the non-disclosing party with reasonable prior written notice sufficient to permit it an opportunity to contest such disclosure.
10. Intellectual Property.
10.1 Nothing in this Agreement or the performance thereof shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property or other proprietary rights held by either party or its licensors. Company’s intellectual property and proprietary rights include any skills, know-how, modifications or other enhancements developed or acquired in the course of configuring, providing, or managing the Service. Each party agrees that it will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology of the other party or its licensors.
11.1 Customer understands that delivery of the Services may involve use of software owned by Company or third parties (“Software”) under license agreements with Company. Customer shall not cause or permit reverse engineering, disassembly or de-compilation of any software provided by Company. Title to software provided by Company shall not pass to the Customer. Customer agrees to abide by all other terms governing use of such software. Company makes no representations or warranties whatsoever with regard to such third party software. Customer acknowledges that certain Software and technical data to be provided hereunder and certain transactions hereunder may be subject to export controls under the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions. Customer shall not export or re-export any such items or any direct product thereof or undertake any transaction or service in violation of any such laws or regulations.
12. Network Security.
12.1 To the extent Customer engages Company to provide Services with respect to security of Customer’s network or data, Customer will remain liable for the security of Customer’s network and data. Customer acknowledges that the Services endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Customer should consider any particular Service as just one tool to be used as part of an overall security strategy and not a guarantee of security. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES RESULTING FROM SECURITY BREACHES REGARDING CUSTOMER’S NETWORK OR DATA. THIS DISCLAIMER IS IN ADDITION TO, AND NOT INSTEAD OF, ANY OTHER DISCLAIMERS AND LIMITATION OF LIABILITY IN THIS AGREEMENT.
13.1 If the Service includes access to or the use of equipment or software provided by Company or its licensors (“Company Equipment”) that will be located at a Customer premises or other non-Company location (“Customer Site”), Customer shall: (a) at its expense, provide secure, suitable space and power supply as necessary for the installation and operation of the Company Equipment; (b) ensure that Company, its agents and subcontractors have appropriate access to enable Company to install, maintain and disconnect the Company Equipment; (c) not, nor permit others to, move, modify, or attempt to repair the Services or Company Equipment or interfere with the maintenance thereof; (d) not assert any ownership interest whatsoever in Company Equipment and shall keep the Company Equipment free and clear from all liens, claims and encumbrances; (e) use all Company Equipment in accordance with this Agreement (f) bear the entire risk of loss or damage to the Company Equipment at Customer Sites; and (g) upon any termination of the applicable Service, provide all necessary cooperation to allow Company to remove the Company Equipment.
14. Acceptable Use Policy/Content.
14.1 All use of Company’s network and the Services by Customer and its End Users will comply with the AUP set forth in Exhibit B. Company may make reasonable changes to the AUP at any time and such change will be effective upon posting to Company’s website or other notice to Customer.
14.2 Content. Customer bears sole responsibility, legal and otherwise, for the content of all Customer material appearing on its Website and for its compliance with relevant legislation.
15. Connectivity/Backup/Security Issues.
15.1 Company shall use reasonable efforts to make available to Customer at all times the Server and the Services but shall not, in any event, be liable for interruptions of Service or down-time of the Server.
15.2 If ordered by Customer, Company will use good faith efforts to assign Internet address space for the benefit of Customer during the Service Term. Any IP addresses and space provided to Customer by Company are solely for Customer’s use with the Service, and are non-portable and non-transferable. Neither Customer nor any End Users will own or route any IP addresses or space provided by Company, and, upon any termination of Service, Customer’s access to such IP addresses and space will cease.
15.3 Backup. Customer will be responsible for backup and other protection of its data against loss, damage, or destruction. Company will have no obligation or liability with respect to lost, damaged, or destroyed data.
15.4 Network Security. To the extent Customer engages Company to provide services with respect to security of Customer’s network or data, Customer will remain liable for the security of Customer’s network and data. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES RESULTING FROM SECURITY BREACHES REGARDING CUSTOMER’S NETWORK OR DATA. THIS DISCLAIMER IS IN ADDITION TO, AND NOT INSTEAD OF, ANY OTHER DISCLAIMERS AND LIMITATION OF LIABILITY IN THIS AGREEMENT.
15.5 E-mail Services. Customer acknowledges that Company is not responsible for the security of the contents of e-mail sent or received by the Customer. Company is not liable for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system.
15.6 Account Security. Customer and its End Users are entirely responsible for maintaining the confidentiality of customer number/login, password, credit card number, and any other personal information (collectively, the “Account Access Information”). Customer is entirely responsible for any and all activities that occur under its account. Customer agrees to notify Company immediately of any unauthorized use of its account or any other breach of security. Company will not be liable for any loss that Customer may incur as a result of someone else using Customer’s account access information, either with or without Customer’s knowledge. Customer further agrees that it could be held liable for losses incurred by Company or another party due to someone else using Customer’s Account Access Information.
16. Recommendation/Critical Update Disclaimer.
16.1 From time to time, Company may make recommendations regarding the upgrade, enhancement or modification of Customer’s network or Services based upon its industry knowledge and concerns about critical updates. Should Customer decide not to implement such upgrades, enhancements or modifications, Customer acknowledges that Company shall not be liable in any way for the impact related to such failure to implement such upgrades, enhancements or modifications.
17.1 Customer acknowledges that the Services may be subject to maintenance or repair and agrees to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair.
18.1 Neither party shall use, publicize, or issue any press release which includes the name, trademarks, or other proprietary identifying symbol of the other party or its affiliates, without the prior written consent of such other party.
19. Governing Law.
19.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to its principles for resolving conflicts of law. In the event of litigation, each party expressly waives its right to have its claims or defenses heard by a jury. The parties agree that the substantive laws of the State of Tennessee shall govern the existence, validity, and interpretation of this Agreement, without regard to choice of law principles. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR THE SERVICES SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN ANY STATE OR FEDERAL COURT HAVING ORIGINAL JURISDICTION IN DAVIDSON COUNTY, TENNESSEE.
20. Force Majeure.
20.1 Neither party will be liable for any failure or delay in its performance under this Agreement (other than a failure to comply with payment obligations) due to a Force Majeure Event. If a Force Majeure Event prevents the provision of Service for a period of thirty (30) days, either party may terminate the affected Service by providing thirty (30) days written notice to the other party. For purposes of this Agreement, “Force Majeure Event” means an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts of God; earthquake; flood or extreme weather conditions; embargo; riot; sabotage; or terrorist acts.
21.1 All legal notices required to be given hereunder shall be in writing and deemed given if sent to the addressee specified below either (a) by registered or certified U.S. mail, return receipt requested, postage prepaid, three days after such mailing; or (b) by national overnight courier service, the next business day. All other notices (e.g., notice reminder of non-payment) may be sent via facsimile or email and will be deemed given on the day such notice is delivered.
To WORX SOLUTIONS MANAGEMENT, LLC:
5020 Rockport Avenue
Franklin, TN 37064
With a copy to:
Schaffer Law Firm PLLC
ATTN: Rachel Lawson
1604 16th Avenue S
Nashville, TN 37212
If no address is set forth in this Section, the address provided in the Preamble to this Agreement for Customer shall be the notice address.
22.1 Except as otherwise expressly set forth in this Agreement, neither party’s failure to insist upon strict performance of any provision of the Agreement shall be construed as a waiver of any of its rights hereunder. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
23.1 All provisions in this Agreement, which by their nature are intended to survive expiration or termination, shall so survive. If any term of this Agreement is held unenforceable, the unenforceable term shall be construed as nearly as possible to reflect the original intent of the parties and the remaining terms shall remain in effect. This Agreement is intended solely for Company and Customer and does not provide any third party (including End Users) with any right or benefit. Customer may not assign all or any part of this Agreement without the prior written consent of Company, which consent will not be unreasonably withheld or delayed. Company shall have the right to assign this Agreement. In the event of conflict among terms, the order of priority shall be as follows: the relevant SOW with the latest date, then this Agreement. Except as otherwise set forth herein, all amendments to this Agreement shall be in writing and signed by the parties’ authorized representatives. Only an authorized officer of Company may execute this Agreement. This Agreement together with all applicable Service attachments constitutes the entire agreement of the parties with respect to the Services and supersedes any other prior or contemporaneous agreement or understandings, whether oral or written, related to the subject matter hereof. All handwritten or typed modifications to this Agreement which are not mutually agreed to in writing are null and hereby rejected. Company may act in reliance upon any written notice, SOW, or other instruction or signature reasonably believed by Company to be genuine. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
Exhibit A: Acceptable Use Policy
As a condition of Customer’s use of Company’s Software and Services, Customer, its agents and its End Users agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and Customer, its agents and its End Users agree to comply with any applicable local, state, federal and international laws, government rules or requirements. Customer, its agents and its End Users will not be entitled to a refund of any fees paid to Company if, for any reason, Company takes corrective action with respect to their improper or illegal use of its Software or Services.
Company reserves the right at all times to disclose any information as Company deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Company’s sole discretion.
Company has no obligation to monitor Customer’s use of the Services. Company reserves the right to review Customer’s use of the Services and to cancel the Services in its sole discretion. Company reserves the right to terminate Customer’s access to the Services at any time, without notice, for any reason whatsoever. By way of illustration, but not of limitation of the foregoing, Company reserves the right to terminate Services if Customer’s use of the Services results in, or is the subject of, legal action or threatened legal action, against Company or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Company may review every account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels.
Company may also cancel Customer’s use of the Services if Customer is using the Services, as determined by Company in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which Customer conducts business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); infringement on the intellectual property rights of third-parties; gambling activities; distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. Customer agrees that it will not be entitled to a refund of any fees paid to Company if, for any reason, Company takes corrective action with respect to Customer’s improper or illegal use of its Services.