Trufix.net, LLC dba Business Marketing Engine Master Services Agreement
– Updated 4-27-2022 –
This agreement is for professional services and for the products and services provided by Trufix.net, LLC dba Business Marketing Engine. This agreement is made and entered into as of the execution date of the above agreement (the “Effective Date”), by and between the customer name noted in your proposal and statement of work that was provided to you (“Customer/Client”), and Trufix.net, LLC dba Business Marketing Engine whose address is P.O. Box 115, Chardon, Ohio 44024 “BME” or “we” hereinafter. The term “Customer” and “Client” are used interchangeably throughout this agreement and also in the Statement of Work (“SOW”) above. Any reference to the SOW or “agreement noted above” is in regards to the proposal and agreement you signed with BME for products and services.
01. The Work
A. Scope of Services
BME shall provide all the services described in the executed Statement(s) of Work (“SOW”) as noted above in this agreement. Additional consulting services may be contracted through BME by means of a subsequent SOW executed between BME and the Customer. All work performed under any SOW is subject to the terms of this Agreement unless otherwise explicitly indicated in the SOW.
B. Statement of Work is an Estimate
Each SOW will include BME’s estimate of the cost to complete the project. BME does its best to accurately estimate project costs upfront based on the scope as it is defined in the Customer’s work request. The estimate is based upon the list of features documented in the SOW. Any feature not specifically referenced and estimated in the SOW is not included in the current scope of the project. All costs listed in the SOW are an ESTIMATE and NOT a FIXED BID.
For each associated SOW, as soon as BME identifies that a task or deliverable may go over the estimate, the Customer will be alerted, and the parties will mutually agree in writing to proceed before any additional work is done which exceeds the approved estimate.
C. Customer Deliverables
Customer is responsible for the delivery of Customer deliverables as defined in the SOW. Common customer deliverables include brand guidelines, media files, product strategy, code, design, content/migration, third party libraries, software / service purchases, quality / acceptance testing. Should Customer be delayed or unable to deliver as per the requirements of the SOW or the project, the timeline and budget will be adjusted accordingly.
D. Customer Sign Off
BME takes great pride in the quality of our work, and as such, will have a QA lead assigned to all projects. The engagement of internal Customer QA resources is also highly recommended. BME is happy to work with a 3rd party QA team or with the Customer’s in-house QA team. This internal Customer QA person must be identified within fourteen (14) days of the project acceptance as to not incur additional charges. BME may (based on the size and scope of the project) identify signoff milestones of deliverables, features, and sprints during the roadmapping phase of the project. The Customer and their QA team will be responsible for ensuring that each milestone and the end product adhere to the agreed-upon requirements. Signoff by the Point of Contact (“PoC”) will be delivered in writing upon completion of each milestone. If a written response is not received from the PoC within fourteen (14) days after completion of the applicable milestone and/or end product, deliverable shall be deemed as automatically approved by Customer.
E. Project Timing
In order to ensure that commitments can be met, BME will book resources for the duration of the project window defined in the project schedule set forth in the SOW. The estimated cost of each deliverable and the overall budget are shaped by the schedule. Should the Customer need to extend or accelerate the duration of the project, an additional fee may be assessed proportional to the impact on the project costs to BME. Such additional fee shall be disclosed to, and approved by, the Customer in advance of such additional fee being imposed.
If the project is delayed by an unscheduled Customer delay of over two weeks, BME may put the project on hold and may reallocate resources to other customers. As such, weekly status meetings, scrums, technical work and / or any other routine interactions shall temporarily cease. When the Customer is ready for the project to resume, the project will be rescheduled based upon BME’s availability and a $500.00 USD or 20% rescheduling fee will be assessed. Any work and meetings requested by the Customer during the hold period will be billed time & materials at $125.00 USD / hr per person.
F. Maintenance & Support
BME offers ongoing sprints, which includes devops support, code maintenance / performance improvements and new development for active production environments. In order to accept an on-demand maintenance or support agreement, Customer will be required to meet or exceed BME’s annual billing minimum or agree to a monthly or annual support contract.
Support: Support services includes the triage and repair of issues reported with a live software platform.
Maintenance: Regular maintenance work operates under project response times and terms and is not subject to support SLA terms detailed below.
Reporting of Issues: Any support requests or issues must be submitted by the PoC, responsible technical leads or Customer’s staff in writing via BME’s project tracking system or via our help desk via email at [email protected].
Response Time: BME will aim to reply to written support requests within the standard response times for project work. Should the Customer require real time support, the SOW will specify the terms and costs for real-time or high priority support. Written requests must be submitted through the approved project management system as set forth in section “Project Management & Communication”. Please note that email, SMS or chat is often subject to personal schedules and while it should be included in the communication chain, is not subject to triggering a response time window. BME will define the priority level of a request as part of the triage and response process.
Resolution Time: Resolution of issues will be handled by priority and urgent requests may affect the delivery of regular sprint based work. BME provides average and top resolution times as a benchmark, but will not guarantee delivery through a service level agreement. The times listed below are estimates only.
G. Service Level Agreement
In the event that your project or services carry an agreed upon Service Level Agreement (“SLA”) the SLA details will be noted in the SOW.
The below priority matrix is for reference and BME reserves the right to adjust the general SLA times noted below as needed without prior notice to the Customer.
Priority 1 [Critical]: The problem reported has immediate, serious business and financial exposure. An end-user is unable to work or perform some significant function of the platform. There is no acceptable workaround to the problem (i.e., the task cannot be performed in any other way).
Priority 2 [High]: The problem reported has immediate, serious business and financial exposure. An end-user is unable to work or perform some significant function of the platform. There is an acceptable and implemented workaround to the problem (i.e., the task can be performed in some other way).
Priority 3 [Normal]: The problem reported has low business and financial exposure. Implementing the request immediately will not result in significantly added value to the organization. An end-user is unable to perform some small function but is able to complete the majority of the tasks on the platform. There may or may not be an acceptable workaround to the problem.
Priority 4 [Low]: The problem reported has a minimal business and financial exposure. Implementing the request immediately will not result in significantly added value to the organization. An end-user is unable to perform some small function but is able to complete the majority of the tasks on the platform. There is likely an acceptable workaround to the problem.
Defining Priorities: As part of discovery, Customer and BME may define example case scenarios for each priority level to aid in triage.
Estimated Response Times
Support (Devops and General): BME will provide front-line support responses according to the priority of the issue reported. Response times and resolution times will apply as follows:
Goal Response Time
Goal Resolution Time
Priority 1 :Critical
Within ~4 business hours
Average resolution time is one (1) business day or less.
BME will aim to keep resolution time under three (3) business days after initial response time.
Priority 2: High
Within ~1 business day
Average resolution time is one (1) business day.
BME will aim to keep resolution time under five (5) business days after initial response time.
Priority 3: Normal
Priority 4: Low
Scheduled as part of the regular sprint cycle.
High Priority Coverage:
During pre-defined periods of high-priority coverage, BME will extend business hours to include 12 hour coverage throughout the defined window during which all response times will occur in under 4 business hours. An additional cost, as defined in the SOW, will be applied to a high priority window. All SLAs are defined in the SOW.
H. Project Warranty
Fixed Fee Projects: BME will provide patches and bug fixes for any bugs or issues included in the scope of work that were introduced by BME during the deployment to production / launch process. Bugs and issues found in features that were previously approved by the Customer during the course of the project will not be covered by the warranty. Issues must be reported by the Customer within the grace period of no more than 30 days following the date of project completion, as defined by the date the Customer signs off on the deliverables, or as defined by the last payment made on the project. For sprints and projects under 60 days, the duration of the warranty will be defined within the SOW. All bug fixes outside of the project scope or after the grace period are the responsibility of the Customer. Should further support be necessary, a support SOW may be negotiated.
Constrained Time & Materials Projects: BME will provide a clear release and exit plan including a final sprint to serve as a cleanup and polish period. This sprint will be allocated for in the budget estimate and all work will be billed using the standard hourly rate. Should the project budget exceed original expectations, Customer may choose to limit the scope of the final post-release sprint. BME does not offer a window of unpaid work.
On-Going Time & Material Projects: Projects which run over multiple budget periods, and have no delineated exit point, can have a warranty sprint(s) that will be planned and budgeted like a regular project sprint. Bugs and features will be tracked within the project backlog and scheduled in sprint planning. Each sprint is started once work is approved, and billed once work is completed. These projects have no implied warranty.
02. The Finances
A. Payment Terms
Due to the high demand for BME’s services, unless otherwise noted, all fees are prepaid. In the event that payments are not issued, or charges declined on your chosen payment method, the Customer has fourteen (14) days to complete the payment. Should an undisputed payment be late beyond fourteen (14) days, BME reserves the right to freeze all work until accounts are settled. If the amount of any invoice is in dispute, Customer shall pay any amount that is undisputed.
B. Hourly Billing
If the SOW of work provides for a Time & Materials option, time will either be billed hourly at a rate of $125.00 USD / hr and invoiced on a monthly basis in arrears. However, BME reserves the right to require blocks of hours to be pre purchased for Time & Materials projects. BME will review work requests in our project management system, plan sprints and provide a cost estimate per ticket based upon priority. Once approved, with an executed SOW in place, work will proceed. As soon as we know that a task may go over the estimate, the Customer will be alerted, and the parties will mutually agree to proceed before any work is done which exceeds the approved estimate. A breakdown of hours per billing period by task and / or by deliverable will be made available upon request.
C. Fixed Billing
If fixed billing is part of the SOW payment will be set by project milestone defined within the SOW. Upon written Customer acceptance of the successful completion of the milestone an invoice will be sent. Any scope changes during the course of the project will require a written and approved change order.
Retainers are based upon the entire availability, or a fraction, of a BME project team. We will structure the flow of work using a regular sprint planning session. Each month, the Customer and BME team will review all open tickets in the backlog together in order to determine which features should be included in the next sprint for strategy & scoping, UX / design, and development. We will allocate a predetermined percentage of our availability for time-sensitive requests which are set in sprint planning, and triage as they come in. Should the timely requests exceed planned availability, they will be added to the backlog. We are happy to consider flexing upon request if you have budget flexibility to exceed the monthly cap and if we have any additional availability. Additional hours used above the agreed retainer will be billed at a time & materials rate of $125.00 USD / hour. Unused retainer hours for any given month will not roll over into subsequent months.
Licenses, media files, specialized software, server costs, code versioning services, project management tools, and any other assets or services required specifically for this project, pre approved by Customer and paid by BME, will be billed monthly. Customer will buy the materials or services directly unless specifically agreed upon in writing. Any effort required by BME around purchasing tools, services or assets will be invoiced at the Time & Materials rate.
Customer and project-related travel will be budgeted as follows:
Working days: a day rate equal to 8 hours per person at the standard hourly rate of $125.00 USD. Consulting rates begin at $1,250.00 USD per hour and will be clearly noted in the SOW.
Travel days: a day rate equal to 4 hours per person at the standard hourly rate of $125.00 USD.
Meals: $150.00 USD per diem per person.
Travel out-of-pockets, including taxi, train tickets, plane tickets, gas / mileage reimbursement are the responsibility of the Customer unless otherwise clearly indicated in the SOW.
Hotel or lodging out-of-pockets, including room fees & taxes are the responsibility of the Customer unless otherwise clearly indicated in the SOW.
All projected costs will be submitted to the Customer before travel is booked, for review and approval. Final expenses will be invoiced as incurred. Travel costs are not included in the project estimate. However, if work included in the estimate is performed as part of the travel engagement, the Customer will not be billed twice for those working hours.
G. Deposit of Funds
All projects will require an initial deposit or the pre-payment of the first month’s fees. In order to begin work on an SOW, the Customer will provide BME an initial payment as per the terms defined in the SOW.
Time & Materials Downpayment: An initial payment to cover the first sprint will be required for kickoff. The funds from this deposit will be billed directly against initial work.
H. Sales Tax
Customer understands that BME will comply with all applicable sales tax or similar laws, and that Customer will be responsible for all taxes incurred.
Sales tax (where applicable) will be added as a separate line item in addition to the cost of services invoiced to the Customer. Should BME determine at any phase of the agreement that Sales tax is required, BME will reissue all relevant invoices with the applicable sales tax applied.
Should Customer be exempt from paying sales tax, Customer must submit proof to BME in digital format (scanned) in order to avoid being charged.
I. Payment Information
Payment information is securely stored in a PCI compliant manner or with our payment processors. All BME team members treat payment information with the utmost confidentiality.
03. The Way We Communicate
A. Point of Contact
BME will require one point of contact during the Agreement for clarifying requirements for design, key features, usability and maintenance issues. BME requires this person be available to answer questions arising from the project within 2 business days (subject to reasonable exceptions), and to have authority to make design and related decisions on the system. Customer’s Primary Point of Contact (“PoC”) may authorize other officers or employees to respond to any issue requiring the technical expertise, or may designate a new point of contact by communicating such change in writing to BME.
The Primary Customer Point of Contact is the Customer who is named in the SOW above, unless otherwise specified in writing within 14 days of acceptance of this agreement.
A Secondary Point of Contact or Supervisor may be requested within 14 days of acceptance of this agreement. After 14 days, additional fees may apply if additional or multiple PoC’s are requested.
B. Project Management & Communication
Business Day / Hour: For the purposes of this contract, “business days” and “business hours” shall be defined as Monday-Friday, from 9 a.m. to 5 p.m. Eastern Standard Time (“EST”).
Project Tracking Software: BME will manage work using a Monday.com project tracking software or other similar project management softwares as well as google documents. The Customer’s PoC, stakeholders, and collaborators will all have appropriate access to the project and all associated assets. This system will serve as a primary mode of communication, documentation, and reporting. Any approval made within the system by the PoC will be considered official written approval. If more than one Customer contact needs access to this system, additional access fees may apply and will be sent to the Customer for approval before access is given.
BME project managers may ask for formal approval in any communication method (Email, Monday.com and Google Docs) and receive it back from the client. The project manager will articulate that it is a request for approval.
C. Project Response Times
Due to the nature of our project load, BME is not set up to support on demand services outside of business hours and any window of time otherwise defined within the SOW. Within the duration of this Agreement, BME will make every effort to reply to inquiries within two business days except where the Customer has been previously notified of a period of limited availability. BME will respond in good faith but cannot guarantee any specific action within a given time frame.
Should a specific Service Level Agreement for technical support or devops be included in the SOW, response time expectations will be defined in the appropriate section and for those offering supercede our standard response timeframe.
04. The Ownership
A. Intellectual Property & Ownership
As defined in the applicable SOWs, BME will provide the completed deliverables (“Finished Product(s)”) to the Customer in the form of source code files, object code files, data files, rendered assets, paper documents and other asset files. The Finished Product(s) does not include process materials, comps, prototypes, notes, or other assets generated throughout the project unless specifically stated within the SOW. The Finished Product(s) are commonly delivered to the Customer through a file sharing service, the project management system, email and/or through a shared code repository for a limited period of time, with the expectation that the Customer will download the deliverables they desire during the agreed upon window. The Finished Product(s) become the exclusive property of the Customer upon acceptance of delivery and complete payment of all terms as set forth in the SOW(s).
The Finished Product(s) may include content from third parties, integrate with services, open source projects, or whose intellectual property rights (such as copyrights, trade secrets, patents, etc.) are entirely owned by BME. BME represents and warrants that it has a legal right to use any such existing content in the creation of the Finished Product(s). The Customer’s right to use such content is subject to the licenses provided in this MSA, the SOW, and licenses specifically defined by their respective owners. Such code and other underlying technologies do NOT become the property of the Customer, only the Finished Product(s). No rights to these dependencies is expressed or implied.
B. BME Product Lines
BME’s Frameworks: are development tool sets owned and managed by BME. These tools are fundamental to the development of large scale custom website and platforms. We utilize them to successfully execute the services defined in the SOW. Code from these tools are embedded and licensed for the Customer’s use in combination with the Finished Product(s). Customer will not distribute or use the tools on projects outside of those defined within the associated SOWs, or otherwise utilize it in a manner objectionable to BME. Should the Customer desire to purchase standalone access once this Agreement has expired or for projects not defined in the SOWs, they can do so as part of a separate contract.
BME’s GPL Software: From time to time BME develops and releases software used by millions of people under the open-source GPL license. Use of this software is subject to the terms of the license under which the Customer uses the software. Should Customer use any paid GPL product or libraries, including BME’s suite of plugins, Customer will be bound by the terms and conditions of the licenses for those products. All paid GPL software or libraries must be purchased by the Customer directly through the proper channels. Unless specifically otherwise referenced, BME’s GPL products are not covered under the terms of this Agreement.
BME’s SaaS Products: Any purchase, support or use of a Software-as-a-Service offerings will be done under the terms and conditions of that service and is not covered under the terms of this Agreement.
Finished Product(s): Unless a specific time period is defined within the SOW, Customer may use the Finished Product(s) indefinitely so long as the Customer continues to comply with the terms of this Agreement and any applicable SOW. BME provides no guarantee outside the terms defined in the SOW to support the Customer’s continued use of the Finished Product(s).
We take great pride in our work and like to share our combined success. Customer agrees that BME shall have the right to include the relevant Customer brand within its roster of clients. When publicly available, the Customer’s project will be directly referenced as part of BME’s business portfolio.
04.1 Marketing Permission
Client agrees on behalf of their company, and the customers that their company serves, that BME reserves the right to use publicly available logos, websites, photos and information from work that was produced for the Client as part of our marketing efforts. Additionally Client agrees that BME may state estimated marketing results, such as leads and sales opportunities generated from marketing efforts. Client further agrees that BME may estimate revenue increases and other strategic improvements that have come from any work that BME may have contributed to as part of the services provided by BME.
04.2 Project Management Record Keeping Practices
Client agrees to allow BME to record all communications, audio calls, video calls, and all email or other written communications. These recordings are kept confidential and are used for the purposes of reviewing project details, or reconfirming agreements made on calls. They may be used in legal proceedings if required, but the primary use of the recordings is to ensure we deliver quality results on your projects.
05. The Limits
In the event that any aspect of this Agreement is dependent on a separate third party or the Customer’s in-house team, the quality and punctuality of the Finished Product(s) (defined below) may be subject to said party’s ability to meet the required timelines and / or level of quality. BME is not responsible for any delay or defect caused by a separate third party or the Customer’s in-house teams except in such cases where BME has engaged such third-party to perform a portion of BME’s obligation under any applicable SOW.
B. APIs & 3rd Party Services
BME is not responsible for the uptime, performance or stability of any 3rd party service. Should an API or service change and in any way affect the application or alter scope, additional budget may become required and the timeline may be affected. BME will document all required integration points.
C. Content & Copyright
Customer is ultimately responsible for the creation, entry, design, review, and final quality of all their content. This includes web copy, media files, documents and embedded assets. Specific responsibilities from both BME and the Customer will be defined in the SOW or documented during the planning phase.
BME and Customer will both observe applicable copyright and trademark laws. Customer will obtain permission from any copyright owner to use their asset (stock media, code library or snippet, font and 3rd party tool) that has any restrictions, requires payment or affects the copyright or ownership of the deliverable.
Applicable deliverables from both BME and the Customer will comply with the accessibility standards set forth in the SOW at the time of delivery. BME is not responsible for any accessibility requirements outside the specific deliverables defined in the SOW. Should no accessibility requirements be set forth in the SOW, the customer releases BME from any obligation from accessibility compliance. Customer is responsible for the accessibility compliance of all web content (user created text, images, video, sound, files) and any/all changes made to the Finished Product(s) by all parties aside from BME.
E. Hosting & DevOps Services
Unless otherwise noted in the SOW, the Customer is responsible for choosing, paying for, and maintaining any required hosting solutions and associated services. This includes, but is not limited to test, staging, production dns, CDN servers, domains, code versioning hosting, project management tools, documents, data storage, media storage, or other paid services required for the project. BME is NOT responsible for down time, poor performance, or loss of data caused by the hosting provider. Additionally, BME is not responsible for any bug caused by changes on the host after the delivery of the work detailed in the SOW, including but not limited to updates to operating system, compile systems, code libraries and languages, or any changes resulting from security violations.
BME provides DevOps services which includes the configuration of the servers, deployment infrastructure, caching and scaling support, monitoring of performance and establishing redundancy of services. BME is not accountable for the cost of hosting infrastructure. Any changes in hosting cost due to planned or unexpected fluctuations will be the responsibility of the Customer.
DevOps services typically operate on retainer. In the event of an emergency (an outage or imminent critical failure), if BME is unable to contact the Customer to secure additional budget, BME has the discretion to spend up to 12 billable hours at the standard hourly rate in an effort to temporarily address the outage.
All DevOps communication response times will comply with the window defined within Response Time section of this Agreement and the applicable SOW.
BME maintains internal backups of active project code and design files. This backup system is not intended as a solution for the Customer, rather as a code archive through the duration of this engagement. While the BME backup system is fully redundant, it is not guaranteed and does not support any content produced by the Customer. The Customer is solely responsible for the backup and restoration of the Finished Product(s) and any associated data should BME not be engaged to provide ongoing DevOps services.
Although BME makes every effort to provide secure Finished Product(s), due to the nature of rapidly advancing technology, BME can in no way guarantee that the Finished Product(s) will not be subject to security breaches. BME recommends the use of strong passwords and the observance of standard security practices. In order to minimize the chances of security violations, systems should be updated often. The Customer is solely responsible for tracking software updates which may affect their system should BME not be engaged to provide ongoing DevOps services.
H. Independent Contractors
BME may, at its sole discretion, engage subcontractors to fulfill any portion of this Agreement or the SOW or delegate its obligations to a third party, provided that such delegation shall not relieve BME of its obligations hereunder or thereunder.
Nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of employer and employee between the parties. BME shall be responsible for the payment of compensation to its own employees and subcontractors and shall be responsible for the proper reporting and payment of all federal, state, and local taxes due on payments made to BME by the Customer. The parties shall pay all employment taxes, including, without limitation, worker’s compensation, statutory disability insurance and unemployment insurance, applicable to the respective party and its respective employees and subcontractors. The parties shall have the sole responsibility for providing such benefits to its respective employees and/or subcontractors.
Except as otherwise set forth in this Agreement, neither party shall be responsible for the responsibilities, taxes, or otherwise of the other party. Neither party nor any employee or subcontractor employed by either party shall act, appear to act, or be deemed for any purpose whatsoever to be an agent, employee, servant or representative of the other party.
If during or within one year of termination of this agreement the Customer solicits and then hires or contracts with any employee or independent contractor of BME, the Customer will agree to pay BME, a finder’s fee of 50% of the annual salary or contract fees offered to the contractor or employee. Said payment will be rendered within 30 days of hiring or contracting the contractor or employee.
J. Limited Liability
The Customer alone shall be responsible for: (a) the accuracy and adequacy of information and data furnished for processing; (b) any use made by the Customer of the output of the software or any reliance thereon; (c) obtaining the required licenses and respect copyright for any and all third party assets including but not limited to fonts, media, and software and (d) taking any and all steps necessary to enable both parties to fulfill their obligations under this Agreement and any SOW. The Customer shall also be responsible for the continued operation and maintenance of the computer equipment and third party software used with the Finished Product(s), and shall comply with all operational, environmental and maintenance recommendations and requirements of the applicable licensors, vendors and manufacturers.
The Customer agrees that any liability of BME relating to this agreement and the services performed shall be limited to the amount of fees actually received by BME from the Customer under this Agreement regarding the services in question, in the immediately preceding three (3) calendar months. In no event shall BME be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property; or any lost sales, profits or data, even if the Customer is told that any such damages may occur.
BME shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling any term of this Agreement when such failure or delay results from acts or circumstances beyond reasonable control. Such circumstances include, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, zombie apocalypse, riot, or other civil unrest, national emergency, revolution and insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Customer shall be entitled to give notice in writing to terminate this Agreement.
06. The Law
Customer may terminate this Agreement with Company at any time with sixty (60) days written notice of Customers intent to cancel. Company may terminate this Agreement at any time for any reasoning, with no notice to Customer. Upon termination or expiration of this Agreement, the following provisions shall survive: Reservation of Rights, Confidential and Proprietary Information, Disclaimer of Warranty, Limited Warranty, Limitation of Liabilities, Survival, and Miscellaneous Provisions.
B. Reservation of Rights.
Company. Company expressly reserves all rights in the Service and all other materials provided by Company hereunder not specifically granted to Customer. It is acknowledged that all right, title and interest in the Service and all other materials provided by Company hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Company (or third party suppliers, if applicable) and that the Service and all other materials provided by Company hereunder are licensed on a services subscription basis and not “sold” to Customer. Names, logos, and other materials displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Company or other entities. Customer is not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Company or those other entities. Any use of third party software provided in connection with the Services will be governed by such third parties’ licenses and not by this Agreement.
Customer. Customer expressly reserves all rights in any information, records, files or other data that Customer (or Customer Personnel) loads, enters into, or otherwise makes available to Company or the Service and all results from processing such data, including compilations, and derivative works thereof ( “Customer Data”), except that Customer grants Company a perpetual, non-exclusive, world-wide, royalty free, fully sublicensable, fully paid-up license to use, reformat, modify, display, perform, reproduce, and create derivative works of the Customer Data: (i) in providing the Service to Customer or (ii) in connection with Company’s internal business purposes. Unless specifically agreed in writing, each Party’s rights under this clause (b) extend to any update, adaptation, translation, customization or derivative work of Customer Data, made under this Agreement.
Confidential and Proprietary Information.
To the extent Confidential Information is disclosed, the Company and Customer shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not disclose Confidential Information to anyone except as required by law. Upon termination of the Contract, each party shall return all confidential information to its rightful owner as promptly as possible. Company will remove all confidential, proprietary, and client files or information off its server thirty (90) days after a client ceases to be a client of BME.
This Agreement does not give Customer any rights in Company’s intellectual property or technology. Company and related trademarks and logos are the exclusive property of Company. Company and Customer agree that neither will, directly or indirectly, reverse engineer or decompile object code or execution code, nor otherwise seek to obtain source code or trade secrets of the other party. Notwithstanding the foregoing, nothing herein shall bar Company from using any knowledge, information or skills that are generally known or that can be learned or otherwise acquired in the normal course of business.
C. Disclaimer of Warranty
The Products & Services provided under this Agreement are provided on an as is, as available basis. Company does not make any warranties that the Services will be successful or error free; nor do they make any warranties as to the results that may be obtained from the purchase of the Products & Services as to accuracy, reliability or content of any information, services or merchandise contained in or provided through the services.
WE ARE NOT LIABLE AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RELATED PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
D. Limited Warranty
Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other Customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions.
The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third-party equipment not within the sole control Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY OFFER PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WE HEREBY EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY PRODUCT OR SERVICE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
E. Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE,
WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other Terms of Service theory (including strict liability), other than claims based on fraud or willful misconduct.
Notwithstanding anything to the contrary in this Agreement, Company maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the purchase of the offer which gave rise to such damages, losses and causes of actions.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
Customer agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s purchase of the offer, (ii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iii) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
G. Dispute Arbitration.
Any dispute or claim relating in any way to your use of Company website, or to any products or services sold or provided by Company will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our Corporate office: PO Box 115, Chardon, Ohio 44024. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. Arbitration can be conducted by telephone, based on written submissions, or in person in Geauga County or Cuyahoga County Ohio.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Independent Contractor. Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Ohio. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this agreement must be brought in a state or federal court located in Cuyahoga County, Ohio. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Headings. The headings herein are for convenience only and are not part of this Agreement.
Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement and SOW constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective when posting to Company Web site or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in Company’s billing records.
Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
Copyright Policy. We will terminate the privileges of any user who uses this Site to unlawfully transmit copyrighted material without a license, express consent, valid defense or fair use exemption to do so. In particular, users who submit Content to this Site, whether articles, images, stories, software or other copyrightable material must ensure that the Content they upload does not infringe the copyrights or other rights of third parties (such as privacy or publicity rights). After proper notification by the copyright holder or it agent to us, and confirmation through court order or admission by the user that they have used this Site as an instrument of unlawful infringement, we will terminate the infringing users’ rights to use and/or access to this Site. We may, also in our sole discretion, decide to terminate a user’s rights to use or access to the Site prior to that time if we believe that the alleged infringement has occurred.
Links. The Site may automatically produce search results that reference or link to third party sites throughout the global Internet. Company has no control over these sites or the content within them. Company cannot guarantee, represent or warrant that the content contained in the sites is accurate, legal and/or inoffensive. Company does not endorse the content of any third party site, nor do we warrant that they will not contain viruses or otherwise impact your computer. By using the Site to search for or link to another site, you agree and understand that you may not make any claim against Company for any damages or losses, whatsoever, resulting from your use of the Site to obtain search results or to link to another site. If you have a problem with a link from the Site, please notify us, and we will investigate your claim and take any actions we deem appropriate at our sole discretion.
INTERNET TECHNOLOGY AND THE APPLICABLE LAWS, RULES, AND REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, WE RESERVE THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY TIME. YOUR CONTINUED USE OF THE WEB SITE CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEB SITE.