APPLIED SYSTEMS, INC.

 

TERMS AND CONDITIONS INCORPORATED INTO SERVICE AGREEMENT

 

Updated as of: 15 June 2016 (May be updated at any time)

 

Execution of the Service Agreement (hereinafter “Agreement”) by the parties referenced as “Client” and “Company” in the Agreement (hereinafter “Client” or “Company”, individually; “parties” collectively) constitutes the parties’ agreement to be bound by the Agreement and by these terms and conditions (hereinafter “Terms and Conditions”). The Terms and Conditions govern the parties use and provision of the Services of APPLIED SYSTEMS, INC. The terms of the Agreement are fully incorporated herein by reference. All provisions of the Agreement are to be performed pursuant to the following Terms and Conditions:

 

  1. DESCRIPTION OF SERVICES: The Services provided to Client by Company during the term of the Agreement are as follows:

    1. Installation services including installation of computer hardware as requested, installation of computer software as requested, , installation of applicable hardware and software upgrades as requested and at a minimum of once per month;

    2. Support services including on-site and remote computer and network support as requested, application usage assistance as requested, network administration as requested, consultation on hardware, software, and network equipment as requested;

    3. Repair services including diagnostics, repair, and replacement of faulty computer or network equipment as requested;

    4. Maintenance and monitoring including routine maintenance of computer and networking hardware and software along with written summary as requested and at a minimum of once per month, checking and running any and all hardware and software updates, network monitoring of critical equipment and internet up-time as requested and at a minimum of once per month.

  2. NON-ASSIGNMENT: The Services provided to Client pursuant to the Agreement are non-exclusive, non-transferable, non-assignable, and are for Client's internal business use only. Client may not in any way transfer, sell, rent, or lease to anyone any of Client’s rights to use the Services.

 

  1. PERSONAL GUARANTEE: The individual who signs the Agreement on behalf of Client personally guarantees the payment of any and all future obligations which may be owing to the Company on demand, regardless of whether legal action is taken. The Client agrees that upon the dishonor of any check for whatever reason, the signing individual and the Client will be jointly and severally responsible for the payment. This is a continuing personal guarantee and may be revoked only in writing by delivery to the Company by certified mail return receipt requested.

 

  1. SOFTWARE ALTERATIONS: At Client’s request, editing of software, data, or digital media could be performed. Company will have no liability for any data lost or destroyed, accidental or otherwise. Company does not guarantee the integrity of Client’s data.

 

                                                                                                                                                                                                                                                                                                                                                                                            

 

 

  1. CONFIDENTIAL INFORMATION: Company and Client will keep the information of one another confidential, and will not disclose any confidential information without the prior written consent of the other, and will not disclose to any person, firm or company, whether or not a competitor, and will use their best efforts to prevent the publication or disclosure of any information concerning the business, assets, accounts or finances of each other or any of the secrets, dealings, transactions or affairs of each other, including, but not limited to, trade secrets, costs, pricing practices, customer lists, financial data, employee information or information as to the organization structure, which have or may come to their knowledge during the term of the Agreement.

 

  1. INDEPENDENT CONTRACTOR: No provisions of the Agreement or any terms herein may be construed to create an employer-employee relationship between Client and Company. Company is an independent contractor and not an employee of Client or any of its subsidiaries or affiliates. The compensation set forth in the Agreement and herein will be the sole consideration due to Company for the Services rendered. It is understood that Client will not withhold any amounts for payment of taxes from the compensationof Company. Company will not represent to be or hold itself out as an employee of Client.

 

  1. NON-SOLICITATION: During the term of the Agreement and for two (2) years after termination of the Agreement, Client, acting alone or in conjunction with others, will not induce or attempt to influence any personnel employed by Company to terminate his or her relationship with Company. Furthermore, Client will not employ any past or present employees of the Company directly or indirectly during the Agreement term and for two (2) years from the date of termination. Failure to comply with this provision will result in a buy-out fee of $40,000.00, in addition to any rights the Company has under applicablelaw.

 

  1. FORCE MAJEURE: No party to the Agreement will be considered in breach of the Agreement or Terms and Conditions on account of any failure to perform or delay in performance of any obligations, other than payment obligations, due to acts of God, fire, storm, war, labor disturbances, equipment malfunction, governmental regulation, or any other event not within the reasonable control of the responsible party.

 

  1. LIMITATION OF LIABILITY: It is understood and agreed that COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM CLIENT’S USE OF COMPANY’S SERVICES. COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH CLIENT’S USE OF OR INABILITY TO USE COMPANY’S SERVICES. COMPANY HEREBY DISCLAIMS ANY AND ALL LIABLITY AND CLIENT ASSUMES ALL RESPONSIBILITY FOR OBTAINING INSURANCE TO COVER LOSSES OF ALL TYPES INCLUDING WITHOUT LIMITATION, ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA, DAMAGES TO PROPERTY, EQUIPMENT, DEVICES, OR COST OF PROCURING OR SUBSTITUING SERVICES PROPERTY, EQUIPMENT, OR DEVICES. COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY STATED HEREIN. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED. COMPANY HEREBY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY. COMPANY SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY'S TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT PAID BY CLIENT, IF ANY, FOR THE VALUE OF THE SERVICES PROVIDED PURSUANT TO THE AGREEMENT AND TERMS AND CONDITIONS.

 

  1. WAIVER AND RELEASE: Client hereby waives, releases, acquits and forever discharges any and all claims, demands, losses, injuries, liability, or damages of any kind and nature, against Company, its parents, subsidiaries, partners and affiliates, and its and their respective directors, officers, employees, agents, attorneys, licensors, suppliers, and representatives arising out of or in any way connected with Client’s use of Company’s service.

 

                                                                                                                                                                                                                                                                                                                                                                                            

 

  1. INDEMNIFICATION: Client agrees to indemnify Company, to defend Company, and to hold Company, its parents, subsidiaries, partners and affiliates and its and their respective officers, directors, employees, agents, licensors, suppliers, and representatives harmless from and against all claims, losses, expenses, damages, obligations, and costs including court costs and attorneys' fees, relating to or arising out of Client’s use of Company services, Client's tortious or unauthorized acts, misrepresentations, omissions, failure to perform its obligations pursuant to the Agreement or Terms and Conditions, or any acts not expressly authorized in writing, related to or beyond the scope of the Agreement or Terms and Conditions.

 

  1. MEDIATION AND ARBITRATION: Any disputes between the parties hereto, whether arising under the Agreement, Terms and Conditions, or otherwise, which the parties cannot resolve between themselves using good faith will be referred to a court certified mediator of the Circuit Court in the County of the principal office of Company, and any mediation will be held in the County of the principal office of Company. The Client will bear the cost of said mediation. In the event that said dispute is not resolved in mediation, the parties will submit the dispute to a neutral arbitrator residing in the County of the principal address of Company. The arbitration will be held in the County of the principal office of Company and the Client will bear the cost of said arbitration. In the event that the parties are unable to mutually agree upon an arbitrator within 15 days of the date on which either party requests arbitration of a matter, the matter will be decided by an arbitration panel: the first arbitrator will be selected by the Company, the second arbitrator will be selected by the Client, and those two arbitrators will mutually agree and select the third arbitrator. The parties further agree that full discovery will be allowed to each party to the arbitration and a written award will be entered forthwith. Any and all types of relief that would otherwise be available in court will be available to both parties in the arbitration. The decision of the arbitrator or the majority of the arbitration panel will be final and binding. Arbitration is the exclusive legal remedy of the parties. If either party refuses to comply with a ruling or decision of the arbitrator or the majority of the arbitration panel and a lawsuit is brought to enforce said ruling or decision, it is agreed that the party not complying with the ruling or decision of the arbitrator will pay all the court costs and reasonable attorney's fees (including Trial and Appellate attorney's fees) incurred in enforcing the ruling or decision of the arbitrator. Any rights of injunctive relief will be in addition to and not in derogation or limitation of any other legal rights. The aforementioned terms regarding mediation and arbitration are intended to be binding and mandatory and not permissive in nature.

 

  1. ATTORNEYS’ FEES AND COSTS: In the event any party to the Agreement finds it necessary to employ legal services to enforce the Agreement or the Terms and Conditions, the prevailing party will be entitled to recover reasonable attorneys’ fees and costs from the other party.

 

  1. MODIFICATION: No change or modification of the Agreement, other than adjustments of the Services Schedule or Terms and Conditions, will be valid unless it is in writing, signed by all parties to the Agreement, and attached to the Agreement. Company reserves the right to change the Services Schedule and Terms and Conditions at any time. Updated versions of the Services Schedule and/or Terms and Conditions may appear on the Company’s website from time to time and are effective immediately. The URL that links to the Terms and Conditions may change from time to time. Client is responsible for regularly reviewing Company’s website and these Terms and Conditions regardless of whether the original URL included in the Agreement is functional. Continued use of Company’s services after any such changes, modifications, or updates constitutes Client’s consent to all such changes, modifications, or updates.

 

  1. ENTIRE AGREEMENT: The Terms and Conditions are incorporated into the Agreement by reference. The Agreement and Terms and Conditions constitute the entire understanding of the parties and supersede all prior discussions, negotiations, agreements and understandings, whether oral or written, with respect to this subject matter.

 

                                                                                                                                                                                                                                                                                                                                                                                            

 

 

  1. SEVERABILITY: If any provision of the Agreement or Terms and Conditions is held invalid, unlawful, unenforceable, or void by a court of competent jurisdiction, the Agreement and Terms and Conditions will be considered divisible from such provision, and the remainder of the Agreement and Terms and Conditions will be valid and binding as though such provision were not included in the Agreement or Terms and Conditions in the first place. Any severed term will not at all affect the validity and enforceability of the remaining provisions of the Agreement and the Terms and Conditions.

 

  1. VENUE AND JURISDICTION: Notwithstanding the terms and provisions pertaining to mandatory mediation and binding arbitration, should a lawsuit become necessary to enforce the Agreement or the Terms and Conditions, the parties agree that jurisdiction and venue are waived and suit will be brought in the county of the principal office of Company.

 

  1. WAIVERS: The waiver by any party of any other party's breach of any provision of the Agreement will not operate nor be construed as a waiver of any subsequent breach, and the waiver by any party to exercise any right or remedy will not operate nor be construed as a waiver or bar to the exercise of such right or remedy upon the occurrence of any subsequent breach. No action on the part of either party to the Agreement will be interpreted as a waiver unless such action is in writing.

 

  1. HEADINGS: Headings in the Agreement and Terms and Conditions are for convenience only and will not be used to interpret or construe anyprovision.

 

  1. GOVERNING LAW: The Agreement and Terms and Conditions will be governed by the laws of the State of Florida (without regard to the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect, and performance.

 

  1. COUNTERPARTS: The Agreement may be executed in two or more parts, each of which will be deemed an original but all of which together will be one and the same instrument.

 

  1. FACSIMILE COPY: A facsimile copy of the Agreement and any signatures affixed thereof will be considered for all intents and purposes as originals.

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