Background:
JESEDIA desires to supply Client with technology consultants to perform computer
systems analysis, web design, software installation, troubleshooting, consulting
and/or other services as may be agreed to by the parties (the “Services”) in accordance
with the terms of this Agreement and more fully described in an attachment to this
Agreement, marked as a work order (“Work Order”) similar in form to that which is
contained in Exhibit A attached to this Agreement. Client desires
to utilize the Services of JESEDIA pursuant to the terms of this Agreement.
Intending
to be legally bound, JESEDIA and Client agree as follows:
1. BASIC PROVISIONS/SERVICES/DEFINITIONS
1.1 This Agreement and the Work Order contain the entire understanding between the parties with respect
to the subject matter hereof and supersedes all prior proposals, understandings
and agreements pertaining to the subject matter hereof. This Agreement may not be
modified nor amended, except in a writing duly signed by an authorized representative
of each party.
1.2 This Agreement shall become effective upon the execution hereof
by the parties and shall continue for an initial period of one (1) year. Either
party may terminate this Agreement at any time by giving the other party at least
thirty (30) days’ prior written notice. Client’s obligation to pay any accrued charges
shall survive any termination hereof.
1.3 Failure of either party to act on or exercise
its rights under this Agreement upon the breach of any term hereof by the other
party shall not be construed as a waiver of such a breach or prevent said party
from thereafter enforcing strict compliance with any or all of the terms hereof.
1.4 Nothing in this Agreement shall create any association, partnership or joint
venture between the parties hereto, it being understood and agreed that the parties
are independent parties and neither party shall have the power or authority
to obligate the other in any way. Neither JESEDIA nor its employees, consultants
or agents shall be
deemed to be employees of Client.
1.5 JESEDIA may provide Services in one of two different ways to Client. It may
provide Services either: a)
remotely (“Remote Services”) by using the telephone
to diagnose a problem or condition with Client’s computer or technical system (“Client’s
System”), or it can use a high speed Internet connection to gain access to the Client’s
System (with Client’s permission and cooperation) and can perform the Services as
though it was sitting at Client’s System; or b) JESEDIA can actually provide Services
at the Client's location, home, place of business, etc. (hereinafter, these types
of Services shall be called, “Physical Services”) and the Services will be performed
on the Client’s premises or “Work Site”
as agreed to by the parties. The term “Services”
as used herein refers to both Remote Services and Physical Services, collectively.
1.6 JESEDIA's regular scheduling hours are Monday through
Friday, 9 a.m. to 6 p.m. E.S.T. For Service requests outside
of those hours, a premium fee may apply. Contact JESEDIA at 1-(866)506-5453 for
pricing information.
2. WORK PRODUCT
2.1 Work Product is the completed, specifications,
reports and documentation thereof created or produced by JESEDIA exclusively in
connection herewith.
2.2 Work Made for Hire – Upon full and final payment to JESEDIA
by Client of all amounts due and owing, all Work Product shall belong to Client.
2.3 JESEDIA Proprietary Material – Client does not under this Agreement
acquire any ownership rights in software, documentation, tools, techniques, methodologies
or other material which is proprietary to JESEDIA (“JESEDIA Proprietary Material”).
However, if JESEDIA incorporates any JESEDIA Proprietary Material into any Work
Product, or any of the Work Product requires JESEDIA Proprietary Material in order
to operate, JESEDIA hereby grants Client a non-exclusive, royalty free, fully paid,
perpetual, irrevocable license to use JESEDIA Proprietary Material, without right
to sublicense or sell said JESEDIA Proprietary Material.
3. CONFIDENTIALITY
During
the performance of Services, Client may provide certain confidential information
to JESEDIA (“Confidential Information”). Confidential Information is information
which relates to Client’s research, development, trade secrets or business affairs
and which is disclosed in writing and labeled confidential, but does not include
any information which: (i) was known to JESEDIA or any of its personnel prior to
disclosure by Client; (ii) is known or able to be ascertained by a non-party of
ordinary skill in computer design and programming; (iii) is or becomes publicly
known through no wrongful act of JESEDIA; (iv) is rightfully received from a third
party without breach of this Agreement; (v) is furnished to a third party by Client
without a similar restriction on the third party’s rights; (vi) is approved for
release by written authorization of Client; or (vii) is developed by JESEDIA without
reference to the information acquired from Client. JESEDIA will (i) treat and obligate
its personnel to treat as secret and confidential all such information and (ii)
not disclose any such Confidential Information to any person, firm or corporation,
nor use it in any manner whatsoever other than to perform Services for Client.
Client
further agrees that JESEDIA is hereby permitted to release Confidential Information
in response to any subpoena or court order from a court of competent jurisdiction
or government regulatory agency.
4. CLIENT OBLIGATIONS
Client will provide, at no
cost to JESEDIA, safe and adequate working space and facilities, and the necessary utility services (e.g., electricity) to support JESEDIA personnel assigned under
this Agreement, and will cooperate with JESEDIA in its access of the Client’s System and Work Site. Client will ensure that a person of at least majority age
is present at all times when Services are being performed. Client warrants that
the Client’s System and Work Site will be accessible and work-ready upon arrival
of JESEDIA personnel. JESEDIA personnel are not responsible for establishing access
to the Client System or Work Site through the means of the lifting of heavy obstructions,
housekeeping, or the like. For Remote Services, Client must also possess
a high-speed internet connection. Client must also possess the minimum computer
system requirements in order for computer and software
installations and upgrades to be effective, which
will be
determined solely by JESEDIA personnel’s discretion. If, upon arrival to
the Work Site (or upon remote access of the Client’s System,
if Remote Services are being performed), JESEDIA determines that: 1) a person of the majority
age is not present at the Work Site, 2) the Client’s System or Work
Site is
reasonably inaccessible to JESEDIA personnel, or 3) the Client’s System
does not possess the minimum requirements, then the Client will be charged for travel
time, (“Travel Time”), which shall be calculated by an hourly rate of $119.99 x the amount of commute time which it takes JESEDIA
personnel’s to arrive at the Work
Site, and the Services will
be rescheduled provided that a) the aforementioned deficiencies are corrected by Client,
and b) the Travel Time invoice is paid. The Client agrees to pay promptly for all Travel Time charges invoiced pursuant to this section 4. Travel Time charges do not apply to Remote Services.
5. INSURANCE
JESEDIA
shall take appropriate measures to insure that its personnel performing Services
hereunder are adequately covered by Workmen’s Compensation insurance in accordance
with applicable law. JESEDIA further agrees to maintain comprehensive general liability
and automotive liability insurance on behalf of its personnel in the following amounts:
- Comprehensive General Liability - $2,000,000 in the Aggregate, not to exceed $1,000,000
per occurrence; and
- Automobile Insurance - $1,000,000 combined single limit.
6.
WARRANTIES AND DISCLAIMER OF WARRANTIES
JESEDIA warrants that all Services provided to Client under this Agreement will
be provided in a professional and workmanlike manner. Client will notify JESEDIA
of any alleged breach of this warranty within five (5 ) calendar days of the performance
of any Services. In the event of a breach of this warranty, Client’s sole and exclusive
remedy shall be for JESEDIA to reperform the Services which breach the warranty
without charge to Client. Notwithstanding the foregoing, however there may be times
when JESEDIA cannot complete the Services because of circumstances which are beyond
its control. Client warrants that it has the right to authorize JESEDIA to perform
the Services requested by Client, including but not limited, that it owns all software
which JESEDIA is being asked to install. Client will indemnify JESEDIA for any breach
or alleged breach of this warranty. It is Client’s obligation to backup software
and data on Client’s computer's hard drive and or any other storage devices prior
to Services being performed by JESEDIA, and neither JESEDIA nor its vendors shall
be liable for the loss, corruption, or alteration of any Client data, files, or
software.
THE WARRANTIES EXPRESSED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES
GIVEN BY THE PARTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED
OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES OTHERWISE ARISING FROM THE
SERVICES PROVIDED OR THE COURSE OF DEALING OR TRADE. THE REMEDIES EXPRESSED HEREIN
SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF CLIENT.
7. LIMITATION OF LIABILITY
Whether attributable to contract, tort, warranty, negligence, strict liability or
otherwise, JESEDIA’s liability for any claims, damages, losses or liabilities arising out of or related to this Agreement or the Services performed hereunder shall not
exceed the amounts paid by Client to JESEDIA for Services under this Agreement
IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS
AND LOSS OF USE OF FACILITIES) SUSTAINED BY THE OTHER PARTY OR ANY OTHER INDIVIDUAL,
THIRD PARTY OR OTHER ENTITY FOR ANY MATTER ARISING OUT OF OR PERTAINING TO THE SUBJECT
MATTER OF THIS AGREEMENT. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS HAVE BEEN NEGOTIATED BY THE PARTIES AND REFLECT A FAIR ALLOCATION OF RISK.
8. PAYMENT TERMS
Client shall pay JESEDIA prior to the performance of any Remote Services. Payment
for Physical Services shall due when performed, either by cash, check, or credit card. All Services
performed by JESEDIA shall be rendered in accordance with a Work
Order. Except to the extent expressly set forth therein,
each Work Order shall be issued pursuant to and governed by the terms and conditions
of this Agreement and shall be incorporated herein.
9. GOVERNING LAW/COSTS
This Agreement
shall be binding upon the parties, their successors, legal representatives and assigns,
and it is mutually understood and expressly agreed that this Agreement shall be
construed and interpreted according to the laws of the State of New Hampshire
without regard to its conflict of laws provisions. In case any dispute shall arise
hereunder, which cannot be resolved within a reasonable time period, such dispute
shall be settled in a court of competent jurisdiction within the State of New Hampshire.
By their respective signatures to this Agreement, both parties do hereby consent
to the personal jurisdiction in all courts of competent jurisdiction within the
State of New Hampshire. In the event that a party to this Agreement must file a
legal action against the other, each party agrees that the prevailing party shall
have its legal costs, attorney fees, and interest paid for by the losing party.
10. FORCE MAJEURE
JESEDIA shall not be responsible for losses or damages to Client
occasioned by delays in the performance or nonperformance of any of JESEDIA’s obligations
when caused directly or indirectly by acts of God, acts of government, casualty,
riots, acts of Client, strikes or other labor difficulties, shortages of labor,
supplies and transportation, or any other cause beyond JESEDIA’s control. The schedule
shall be adjusted in accordance with the impact of any such delay or postponement
and the price shall be equitably adjusted to include all additional costs.
11. SEVERABILITY
Should any part(s) of this Agreement for any reason be held by a court or arbitration
panel of competent jurisdiction to be invalid, void or unenforceable, such decision
shall not effect the validity of the remaining parts, which parts shall remain in
full force and effect as if this Agreement had been executed with the invalid part(s)
hereof eliminated.
12. NOTICES
Any notice or report required or permitted to be
given or made under this Agreement by one of the parties hereto to the other shall
be in writing, delivered personally or by facsimile (and properly confirmed by personal
delivery or courier) or courier, postage prepaid, addressed to the other party at
its address indicated in the first paragraph of this Agreement.
13. ASSIGNMENT
Neither
party shall transfer or assign any of its rights or interests nor delegate any of
its obligations under this Agreement without the prior written consent of the other
party. This restriction on assignment shall not apply to the extent that such assignment
is the result of a merger or sale of all or substantially all of the assets of either
JESEDIA or Client or any other corporate restructuring.
14. CHANGE ORDERS AND CANCELLATIONS
Cancellations and rescheduling of the Services
may be made by providing JESEDIA with at least 48 hours prior notice by calling 1-(866)506-5453. Should the Client desire to modify the
originally scheduled Services, the Client should call 1-(866)506-5453
as soon as is practicable, and JESEDIA will use its best efforts to accommodate
the Client by attempting to modify the Services on the scheduled Services date;
however, in the event that the modification exceeds the time allotted for the Services
appointment, a follow-up Services appointment may be needed.
15. SURVIVAL
The provisions
of Sections 2, 3, 6, 7, 8, 9 and 11 shall survive any termination or expiration
of this Agreement for any reason.
|