These General Terms and Conditions, together with any Service Order, form the Agreement between the Parties. By entering into the Agreement or by purchasing or using the Services, Customer agrees to be bound by these General Terms, which among other things, require mandatory arbitration of disputes instead of a jury trial and limit Provider’s liability.
1. Definitions. As used herein, the following terms shall have the meanings accorded them in this Section 1. In the event of any conflict between a definition set forth in this Section and one contained in an Exhibit to this Agreement, the definition contained within the Exhibit shall control.
1.1. “Authorized End User” means an individual who (i) is an employee, agent, or other representative of Customer, or other authorized individual selected by Customer; and (ii) has been properly issued a valid password that subsequently has not been deactivated.
1.2. “Customer Equipment” means all Customer-owned hardware or services used in connection with the Services and that is not provided or leased by Provider or its agent.
1.3. “Customer Relationship Manager” has the meaning set forth in Section 1 (Parties), above.
1.4. “Error” means any reproducible failure of the Vendor-supported Services to operate in all material respects, including any problem, failure, or Error referred to in the Service Level Table in the Service Order or available upon request.
1.5. “Maintenance and Support Services” means analysis and response to Customer-reported Errors in the Services or equipment as well as updates to any software or equipment.
1.6. “Minimum Customer Equipment Specifications” means those specifications required of the Customer Equipment for proper delivery and functioning of the Services.
1.7. “Out-of-Scope Services” means the “Excluded Services” and any other services not set forth in this Agreement or that Customer and Provider may from time to time agree in writing are not included in the Services.
1.8. “Provider Relationship Manager” has the meaning set forth in Section 1 (Parties), above.
1.9. “Provider Equipment” means all new or reconditioned equipment that Provider or its agent provides, sells, or leases to Customer, including but not limited to computers, monitors, electronic devices, modems, routers, cabling or wiring (except wiring of Customer’s premises), any other hardware. Provider Equipment does not include Customer Equipment.
1.10. “Provider-Supported” means a software or hardware that is among the brands and models and versions supported by Provider.
1.11. “Services” means the services or equipment provided or made available by Provider to Customer under this Agreement.
1.12. “Vendor-Supported” refers, in reference to software or hardware, to a Service or to equipment that is among the brands and models and versions supported by vendors that will be managed by Provider by way of Third-Party Services arrangements between Provider, a third-party vendor, and/or Customer.
2. Provision of Services; Equipment
2.1. Access. Subject to and conditioned on Customer’s payment of Fees and compliance with terms and conditions of this Agreement, Provider hereby grants Customer a nonexclusive, non-transferable right to access and use the In-Scope Services as designated in Section 2 of the Service Order, and described more fully in Exhibit A of the Service Order, during the Term, solely for use by Customer and Authorized Users in accordance with the terms and conditions herein.
2.2. User Credentials. Provider shall provide to Customer’s Relationship Manager the necessary user credentials to allow Customer’s Authorized Users to access the Services.
2.3. Service Suspension. Notwithstanding any other provision of this Agreement, Provider may suspend Customer’s right to access or use any portion or all of the Services immediately and without liability to Customer in any of the following circumstances: (i) Customer’s use of the Services violates laws or this Agreement; (ii) Provider is legally required to suspend or terminate Services; (iii) Customer’s use of the Services poses a security risk to Provider or any third party; or (iv) Customer’s failure to make payment.
2.4. Notice of Changes. Provider shall endeavor to give Customer not less than thirty (30) days prior notice of any changes to any Services, Equipment, or Fees. Customer may request additions to this Agreement by delivering a written request and entering into an Addendum executed by both Parties.
2.5. Provider Equipment. For agreements that include provider equipment, the following terms and conditions apply:
2.5.1. Subject to Customer’s timely payment of Fees and compliance with other terms and conditions of this Agreement, Provider may obtain and provide (on its own behalf, or on behalf of its suppliers or vendors) certain Provider Equipment as set forth on Exhibit A or as described in the Services Order, including hardware and components, as reasonably needed to perform the Services.
2.5.2. Provider grants Customer an exclusive, non-transferable license to use the Provider Equipment as set forth in this Agreement. Provider retains title to all Provider Equipment, at all times, including but not limited to after expiration of the Term of this Agreement, Termination of this Agreement, or payment of any Early Termination Fee.
2.5.3. Provider may remove or change the Provider Equipment at its discretion at any time during the Term of this Agreement. Customer shall not sell, lease, abandon, or give away the Provider Equipment. Customer agrees that it will not allow anyone other than Provider or its authorized agents to service the Provider Equipment.
3. Obligations of Customer
3.2. Compliance with Law. In the performance of this Agreement, Provider will comply with statutes, regulations, ordinances, and orders of the Federal Government and applicable jurisdictions.
3.3. Compliance with specific third-party software, plug-ins, or applications may be required for use of the Services. Customer shall comply with and cause its Authorized Users to comply with the terms and conditions of all third party end user license agreements and/or terms of service accompanying any software or plug-ins to such software distributed or used in connection with the Services, as these agreements may be amended from time to time. All such agreements are incorporated in this Agreement by reference. If Customer does not agree to abide by the applicable terms for any such Third-Party Services, then Customer should not install or use such Third-Party Services.
3.4. Loss or Damage. Customer agrees that, except for the negligence or deliberate act of Provider or its employees, contractors or agents, the Customer will be solely responsible and liable for any loss or damage to the Provider Equipment that occurs while it is being used in connection with the Services. Provider makes no representation or warranty that any software or application installed on Customer Equipment, downloaded to Customer Equipment, or available through the Internet does not contain a virus or other harmful feature. It is Customer’s sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature.
3.5. Notice of Increased Usage. Customer agrees to use commercially reasonably efforts to give Provider at least sixty (60) days advance written notice of any initiatives, acquisitions, alliances, schedule changes, or promotions that may materially increase Customer’s usage of the Services.
3.6. No Resale. Customer shall not in any way resell, license, permit nor allow any third party to use the Services without receiving Provider’s prior written consent.
4. Obligations of Provider
4.1. Provider shall perform the Services in accordance with this Agreement.
4.2. In the performance of this Agreement, Provider will comply with statutes, regulations, ordinances, and orders of the Federal Government and applicable jurisdictions.
4.3. Responsibility for Provider Equipment. Except as otherwise provided, Provider has the sole responsibility for obtaining, installing, maintaining, and removing all Provider Equipment, except that Customer may not, nor will it permit any third party to, tamper with, remove or alter labels on, change, or otherwise modify or interfere with any item of Provider Equipment unless authorized by Provider in writing to do so.
5.1. Termination for Convenience. Unless the Services are subject to a minimum term agreement, Customer may terminate this Agreement for any reason with 60 days notice by notifying Provider by: (1) sending an electronic notice to the email address specified: dgray@24unet ; (2) calling Provider during normal business hours. Termination is effective 60 days from Providers receipt of the notice of termination.
5.2. Termination for Cause. This Agreement may be terminated for cause as follows: (a) immediately by either Party upon written notice to the other Party if a material breach of the terms hereof by has not been cured within thirty (30) calendar days of written notice thereof, or (b) Customer fails to pay any amount due and not in dispute within 30 calendar days of the due date.
5.3. Effect of Termination.
5.3.1. Upon Termination or expiration of this Agreement, Customer shall permit Provider to collect all Provider Equipment. In addition, all end user licenses shall terminate and Customer agrees to destroy all versions and copies of all software received by Customer in connection with the Services. Within 30 days after the effective date of termination or expiration, Provider shall invoice Customer for any final amounts due. If this Agreement includes Hardware Services, Customer shall pay to Provider all amounts owed for Services performed prior to the effective date of termination and, as liquidated damages, an early termination fee of $100.00 multiplied by the number of days remaining in the Term (“Early Termination Fee”). Customer acknowledges that the potential damages from a Termination for Convenience prior to the expiration of the Term are difficult to determine at the time of entering into the Agreement; that the Parties intend to liquidate damages; and that the amount of liquidated damages set forth in this Section 5.3 are reasonable, not greatly disproportionate to the anticipated loss, and not a penalty. The Early Termination Fee is in addition to, and are not in limitation of, any and all other remedies at law or in equity otherwise available to Provider.
5.3.2. Transition Assistance. Provider shall, as reasonably requested by Customer, provide reasonable termination and transition assistance to Customer. Provider shall provide such assistance on a time and materials basis at rates specified by Provider.
6. Parties’ Representations and Warranties. Each Party represents and warrants to the other Party that as of the Effective Date of this Agreement:
6.1. it has the requisite power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and
6.2. the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement shall not constitute a material default under any material contract by which it or any of its material assets are bound, or an event that would, with notice of lapse of time or both, constitute such a default.
7. Confidential Information
7.1. Definition. “Confidential Information” means for each Party hereto any information, in any form, including, without limitation, written documents, oral communications, recordings, videos, software, databases, business plans, and electronic/magnetic media, received or observed by that Party pursuant to this Agreement and provided by/through and/or belonging to the other Party as well as the terms of this Agreement. The Fees payable under, and the material terms of, this Agreement are Confidential Information of each Party.
7.2. Use and Protection of Confidential Information. Confidential Information may be used by the receiving Party only in furtherance of the transaction contemplated by this Agreement, and only by those employees of the receiving Party and its agents or subcontractors who have a need to know such information for purposes related to this Agreement. The receiving Party and its agents and subcontractors shall protect the Confidential Information of the disclosing Party by using the same degree of care (but not less than a reasonable degree of care) to prevent the unauthorized use, dissemination, or publication of such Confidential Information as the receiving Party uses to protect its own confidential information of a like nature and value. The duty hereunder will survive while such information remains Confidential Information. Each Party acknowledges and agrees that the other may, upon the other Party’s written consent, not to be unreasonably withheld, share the terms of this Agreement as reasonably necessary in connection with the due diligence commonly associated with major transactions. Provider shall comply with industry standard data security and privacy standards.
Customer agrees to defend, indemnify and hold harmless Provider from and against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with claims made or brought against Provider by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Services, or Provider Equipment, whether authorized or unauthorized by Customer; (ii) Customer’s breach of any obligation, warranty, representation, or covenant of this Agreement; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of Provider; (iv) any claim by any customer of Customer, end user, or other third party relating to, or arising from, Customer’s use of the Services, Software, or Provider Equipment; or (v) violation of any Applicable Laws by Customer or any Customer employee, contractor or agent.
9. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED FOR UNDER THIS CONTRACT, PROVIDER HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANT-ABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS BASED ON THE USE OR POSSESSION OF ANY SERVICES, EQUIPMENT, OR RELATED MATERIALS PROVIDED UNDER THIS AGREEMENT, UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
10. Limitation of Liability
10.1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE PROVISION OF SERVICES TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO PROVIDER OVER THE PRECEDING TWELVE (12) MONTHS.
11.1. At all times during the term of this Agreement, each Party shall carry and maintain in full force and effect customary levels of comprehensive general liability insurance.
12. Dispute Resolution and Binding Arbitration
12.1. CLIENT AGREES TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CLIENT WOULD HAVE IF THE DISPUTE WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
12.2. The Parties shall attempt to resolve any dispute through a negotiation with persons fully authorized to resolve the dispute, or through mediation with a mutually agreeable mediator, rather than through litigation, or in small claims court.
12.3. However, if the dispute cannot be resolved by the Parties’ representatives pursuant to Section 12.2, the dispute shall be submitted to mandatory, confidential, and binding arbitration under the auspices of the American Arbitration Association (“AAA”) in Denver, Colorado. The confidential arbitration shall proceed according to the commercial rules of the AAA. Judgment on an arbitration award may be entered by any court with competent jurisdiction.
13. Third Party Services.
13.1. Provider may use or rely on one or more service providers, and/or equipment providers or equipment lessors whose products, equipment and/or services are provided in conjunction with, or incorporated into, the Services and/or Provider Equipment (“Third-Party Services”). Such Third Party Services may also be provided under Provider’s trademarks or otherwise branded as a Provider service. Third-Party Services may be governed by separate legal terms and conditions, which, if applicable, may be found or identified in documentation or on other media delivered with the Third-Party Services or Equipment or will be provided to Customer. Such Third Party Services terms and conditions are incorporated by reference into these Terms and shall govern the use of Third-Party Services. Customer agrees to comply with such terms and conditions of all Third-Party Services. Any non-compliance with terms and conditions of Third Party Services shall be considered non-compliance with these Terms.
14.1. No Assignment. Neither Party to this Agreement shall have the right to assign this Agreement or any right or obligation hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party.
14.2. Force Majeure. Neither Party shall be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, diseases, labor disturbances, riots, or wars provided that it gives prompt notice to the other of its invocation of this provision and make diligent efforts to resume its performance despite such force majeure.
14.3. Notices. All notices and communications that are permitted or required under this Agreement shall be in writing and shall be sent to the address of the parties as set forth immediately below, or such other address as the representative of each Party may designate by notice given in accordance with this Section 13.3. Any such notice may be delivered by hand, by overnight courier or by facsimile transmission, and shall be deemed to have been delivered upon receipt.
14.4. No Waiver. Neither Party’s failure to exercise any of its rights under this Agreement shall constitute or be deemed to constitute a waiver or forfeiture of such rights.
14.5. Third Party Access. Provider has enabled features in its Services to allow customers and third parties to access the Services and to modify certain Provider products and applications, using software products and applications not developed by Provider. Should there be a failure of a software product or application not developed by Provider, or should such software product or application cause Provider Services to fail or to be adversely impacted, Provider shall use reasonable commercial efforts to mitigate such failure or adverse impact and may, at its sole discretion, disable the offending software product or application and/or, deny access to Provider Services. Customer shall be liable for all direct damages incurred by Provider in such circumstance.
14.6. Relationship. The relationship of Provider and Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties.
14.7. Entire Agreement and Amendments. This Agreement, including any Service Order and Exhibits, constitutes the entire agreement between Provider and Customer, and supersedes any prior or contemporaneous oral or written communications, representations, or agreements between the Parties, regarding the subject matter of this Agreement. This Agreement’s terms may not be changed except by an amendment signed by each Party, and shall survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit by the Party in whose favor they operate.
14.8. Headings. The headings in this Agreement are for the convenience of the parties only and are in no way intended to define or limit the scope or interpretation of the Agreement or any provision hereof.
14.9. Applicable Law. This Agreement is made under and shall be construed in accordance with the law of the state of Colorado without giving effect to that jurisdiction’s choice of law rules.
14.10. Sever-ability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforce-ability of the remainder of this Agreement shall not be affected.
14.12. Customer agrees that Provider may provide all information by use of electronic communications, including required notices, updates, and other information concerning 24uNet, including but not limited to changes to these General Terms and this Agreement.