Monthly Estimated Costs*
Unlimited 24x7 SureOffice™ Support always included.*w/ 12 month agreement
App licenses paid separately.
IMPORTANT - PLEASE READ CAREFULLY: BY CREATING AN ACCOUNT, OR BY USING SURETECH SOLUTIONS, YOU
AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This website and
SureTech are service marks of the legendary SureTech technology and insurance
solutions provided to Small Businesses since 1997. The SureTech brand, identity and solutions
infrastructure is wholly owned by TopazGroup Ventures, Inc. This services agreement (the "Agreement")
governs your use of all services (the "Solutions" as defined
below) provided by Topaz Group Ventures, Inc., a New York corporation having
its principal place of business at 300 Whitherspoon Street, Princeton NJ 08540
(the "Provider"). You are referred to as "Member"
in this Agreement. If you use any Solutions, or if you click "I Accept
SureTech's Master Services Agreement," then you have agreed to these
terms. If you are an agent or employee of a subscriber or beneficiary of the
Solutions, you individually represent and warrant to Provider that you are
authorized to bind that party to this Agreement. If you do not agree to this
Agreement now or at any time, then you are not authorized to use the Solutions.
1. YOUR RELATIONSHIP WITH TOPAZ GROUP AND THE SURETECH SOLUTIONS
use of, or working with any Provider’s Services, Subscriptions,
Consulting, Joint Ventures, Customization, Configuration, Software Code,
HelpDesk or work or feature Deliverables (collectively
and severally the “Solutions”) is subject to the terms of the following
legal agreement between Member and Provider.
and Provider mutually agree that Solutions of any kind which are delivered and
invoiced to Member by Provider will always include the terms and conditions set
out in this Master Services Agreement (the “Agreement”). The Agreement
forms a legally binding contract between Member and Provider in relation to
Member's work with Provider and receipt and use of the Solutions. Accordingly,
it is important that Member take the time to read this Agreement carefully.
2. ACCEPTING THE TERMS
shall be contracted by a “Statement of Work” (defined in Section 3 below) or
other subsequent written agreement, Quote or Member accepted Invoice. However,
in order to use the Solutions, Member must first accept this Agreement, and the
performance of and payment for Services will be governed by this Agreement.
Member may not request or use the Solutions if Member does not accept this
can accept this Agreement by either:
to "Accept this Agreement" and registering with SureTech.com wherever
this option is made available to Member in the user interface for any
receiving and using any Solution, in which case, Member understands and agrees
that Member’s use of the Solution constitutes Member’s binding acceptance of the
terms of this Agreement for the Solution accepted by the Member and for all
other work between Member and Provider.
Agreement shall not be binding upon Provider unless and until Provider provides
separate written acknowledgment of confirmation of Providers mutual acceptance of
Member’s commitment to enter into this agreement with Provider.
may not use the Solutions and may not accept this Agreement if (a) Member is
not able to form a binding contract with Provider, or (b) Member is barred from
receiving the Solutions under the law of the United States or any other
applicable law. Before continuing, please print or save a local copy of this
Agreement for your records.
3. SCOPE OF
Services and Solutions rendered to Member by Provider will be as specified in a
mutually agreed Statement of Work (a SOW).
Each SOW will specify with reasonable detail, the nature, features,
technology Solutions, customizations and/or configurations (the Deliverables);
the timeline or milestones of delivery; as well as requirements, limits and
fees for the Solutions.
any SOW specification or omission– Member Satisfaction with the solution is our
only goal for any Service or Solution delivered to Member, as detailed in
Section 5: Member Satisfaction Guarantee.
Agreement, including the Satisfaction Guarantee, shall govern the performance
of and payment for Solutions that are the subject of a Statement of Work (a “SOW”);
to the extent reasonable to do so, the terms of this Agreement and the content
of any SOW shall be construed as consistent and complementary; in the case of
an irreconcilable conflict, however, the terms of a SOW shall apply to Services
performed or to be performed under that SOW (but not other SOWs).
addition to the Services and Solutions set forth in each SOW, Provider will
provide such additional services as Member may request from time to time
verbally or in written work authorizations that specify agreed-upon
Services”). Wherever reasonable and appropriate, Provider will
endeavor to summarize Deliverables for Additional Services in written emails
sent to Member in advance of performing the Additional Services. All Additional
Services shall be deemed rendered pursuant to and in accordance with the terms
of this Agreement and no agreements, oral or written, apart from a written SOW
on Provider letterhead may modify the terms of this Agreement.
extent ordered through a SOW or other mutual agreement and understanding
between authorized representatives of Member and Provider, Provider may, upon
Member's verbal or written request, provide any of the following Solutions:
will enable, connect, maintain and support Member utilization of cloud hosted
Subscriber Solutions as packaged, integrated and configured from industry
leading Third-Party providers disclosed to Member for each Solution in advance
and upon request at any time. All Solutions will be powered by tier 3 or tier 4
data centers connected by a multi-redundant network to the major internet
backbones. Provider will maintain network and hardware monitoring and
maintenance for connections between Third-Party providers ("SureSolutions
Integration Fabric") as reasonably required, 24 hours a day, 7 days a
Metered Subscription Services
charges monthly fees based on actual utilization for a range of customized and
easy to use solutions. These Subscriber
Solutions are available on Month to Month, Annual or Multiyear Subscription
Solutions include, but are not limited to: File Storage solutions billed for
actual storage space used each month. Cloud Compute utilization, streaming
application solutions or SureOffice™ streaming solutions as reported monthly
and adjusted in quarterly reviews of trailing average Compute power
utilization. Hardware Maintenance and
Rental Agreements based on actual hardware deployed onsite that may include
setup, maintenance and/or third party license subscription costs in one bundled
monthly fee as listed in an accepted quote or on the Member Invoice. MFA, DNS, Security and Monitoring Services,
SureFilesAnywhere™, Box, Office 365 and other per user license subscriptions
that are charged on a per user or per license basis for the maximum total unique
user counts with access to each service each month.
User Support ("TUS") covers all telephone or email service
requests related to the operation of Subscriber Solutions at a fixed monthly
fee. The monthly fee adjusts quarterly to reflect the trailing actual
utilization of billable labor for all covered service requests billable at the
then current TUS rate per hour. TUS and
other quarterly adjusting flat rate subscriptions are designed to provide
Member predictable expense planning while also ensuring Provider is compensated
for actual Member value and utilization of the Solution over time.
Metered Subscription services are for the term as shown on the quote or on the
monthly invoice with Early Termination fees for cancelation prior to the end of
the listed term in the amount of the remaining payments through the end of the
term for the minimum subscription count listed at the beginning of the term.
Rental Agreements supply Provider-owned Equipment for Member’s use for a term
of one or more months or years as listed on an approved quote or Statement of
Work (SOW) and/or the monthly invoice. The term will auto-renew for an equal
period upon conclusion of the Rental period unless the Agreement is terminated
in writing by Member or Provider and the equipment is returned by Member to
may terminate the Rental Agreement immediately if Member fails to comply with
any terms of section 7 Restrictions and Responsibilities or any other terms of the
Billable Labor and Custom Development
may render Consulting Labor or deliver customized solutions or customized
in accordance with a SOW
as agreed in writing from time to time by the parties. Member agrees to provide
clear and concise Deliverable requests; carefully review the SOW as well as all
subsequent written confirmation notifications and, subject to the Satisfaction
Guarantee, pay billable amounts upon receipt of invoices. Member also agrees, for each SOW, to provide
a single Project Manager to coordinate Member materials gathering, approvals,
work comments and scheduling for all deliverables and work requests.
Deliverables are agreed upon, Provider will review the Deliverables with
Member’s Project Manager on an ongoing basis as set forth in each SOW or as
otherwise agreed upon by the parties.
otherwise specified in writing in a SOW, Provider explicitly reserves for
Provider all rights of ownership to any Deliverable, customization,
configuration technologies or software code produced, delivered, or rendered to
Member by Provider. Subject to the terms
of the Payment Terms and Satisfaction Guarantee, Member may use any
Deliverables under this agreement, but as detailed in section 7 Restrictions
and Responsibilities, Member receives no license or ownership rights to any
underlying technology, code, copyrights or intellectual property utilized by,
in or in association with any Solutions.
Projects, Ventures and Joint Ventures
may engage in special projects, ventures, or joint ventures with Member, as
outlined in a SOW or detailed on an Invoice. These may involve specific
performance deliverables and performance or milestone based payment agreements,
potentially including revenue or profit sharing arrangements between Member and
expressly stipulated in writing, participation in these special projects,
ventures, or joint ventures, including those that set out performance
milestones and unique payment, revenue, or profit sharing provisions, will not
alter any other terms of this Agreement. Importantly, this includes all terms
stated in Section 7 ("Restrictions and Responsibilities") and Section
8 ("Ownership of Materials and Creative Work"). No additional rights,
ownership or otherwise, will be conferred to the Member through participation
in these engagements beyond what is explicitly delineated in the SOW or
4. SERVICE FEES AND HOURLY RATES
Member is responsible for reviewing the
current Schedule of Fees disclosed on each Quote, SOW or invoice to Member. All
fees will be in line with industry standards. The Schedule of Fees is subject
to change, with reasonable advance notice to Member, at the Provider's
discretion. Any changes will also adhere to industry standards and be disclosed
on Invoices to member subject to the Member Satisfaction Guarantee.
Member agrees to provide credit card payment
to Provider for the full current fee invoiced for each Provider Subscriber or
Rental Solution utilized by Member (the “Subscriber
Fees”) within 5 days of Provider invoice being received by
Storage, Total Usability Support and Other Metered Fees
The monthly fee shall adjust quarterly to
reflect the trailing average actual utilization of Metered subscriptions at the
then current rate of the subscription service. Member will be notified of
adjustments to Metered services 30 days in advance of any changes taking
Consulting Services Fee
Subject to the terms hereof, Member will pay
Provider the fees set forth in each SOW as well as the fees due for any
Additional Solutions at the then current labor rates invoiced by Provider.
Provider shall render invoices to Member
each month for The Services as approved by Member. Provider shall maintain
reasonable and adequate documentation substantiating all charges reflected
thereon. Subscription amounts are payable in advance and due either on
the first day of the monthly subscription period covered by the subscription
fee or on the date of delivery of the invoice to the Member, whichever is
later. One time labor and special project billable amounts are payable,
always subject to our Satisfaction Guarantee, net 15 days from the date service
is rendered or five (5) days from the date of delivery of the invoice to
Member, whichever is later. (collectively "Payment Terms")
Payment for Services will be made in US
dollars by a valid credit card accepted by Provider, or by any other means
approved by Provider. Member warrants that the credit card number and
information provided is and will be a valid credit card number belonging to
Member with available credit sufficient to pay the fees for the Services; if
Member cancels this credit card or it is otherwise terminated, Member will
immediately furnish Provider with a new valid credit card. Member authorizes
Provider, from time to time, to undertake steps to determine whether the credit
card provided to us is valid, and to access and investigate the credit rating
Member hereby authorizes Provider to charge
Member’s credit card for agreed upon and due amounts on a regular monthly basis
according to the Payment Terms beginning at the end of the free-trial period,
if any. If Provider is for any reason unable to effect automatic payment via
Member’s credit card, Provider will attempt to notify Member and access to
Services will be disabled and/or discontinued at Provider’s sole discretion
until payment is received. Any such suspension of service does not
relieve Member from obligation to pay any past due billable amounts. In
addition late balances will accrue late charges of $175 plus three percent (3%)
of the late balance per month payment is late, or the maximum amount allowed by
law, whichever is less. In addition, if Member fails to pay any amounts payable
under this Agreement, Member shall be responsible for all costs of collection,
including, without limitation, reasonable attorney fees; administrative,
research and collections efforts; court costs and collection agency fees.
Reinstatement of any suspended or terminated services will be subject to
standard one time setup and provisioning charges.
Once received by Provider, any amounts
remitted for Solutions or Services Rendered are not refundable.
5. MEMBER SATISFACTION GUARANTEE
strives for total Member satisfaction. If and whenever Member is uncomfortable
or dissatisfied in any way with the Services, Provider encourages Member to
reach out to Provider promptly with its concerns, problems, and the like, so
that the parties can work together to resolve those issues in a mutually
acceptable manner. If at any time Member is not satisfied, Member may decline
to continue subscription to the Online Services or to accept receipt of any
Deliverables and also decline to make payment for any Deliverable promptly
declined and not used (and returned to the extent tangible or otherwise
practicable). No payment will be due and no charges will be made to Member’s
credit card for any Deliverables or Services so declined by Member. Declining
payment for unsatisfactory Deliverables or Services is the exclusive remedy for
any unsatisfactory Deliverable or Services or for any breach or other default
by Provider with respect to any Services provided or to be provided under this Agreement.
Member agrees to explicitly and promptly notify Provider in writing of any
declined Service and that Member’s acceptance, retention, or utilization of
Services constitutes acceptance of the Services as satisfactory and of the
corresponding obligation to pay for those Services as agreed. Under the
Satisfaction Guarantee, Term Agreements detailed in Article 14, shall be
satisfactory and accepted for the full Agreement Period unless cancelled before
90 days after the effective date of the Term Agreement.
6. RETURN OF MERCHANDISE, REQUIRED
For hardware sold directly by Provider to
Member (not including third party Hardware or reimbursable expense hardware
purchases made on behalf of Member), Member must call Provider’s service desk
for authorization prior to the return of any product, to receive a Return
Merchandise Authorization (“RMA”) number. RMA issuance is dependent upon
each manufacturer’s return policy.
No return will be accepted without an RMA
number. All requests for any return must be called in within fourteen (14) days
of the date product is delivered to Member. Any custom or special order,
including but not limited to PC and Router configurations and discontinued
merchandise, cannot be returned. All defective products, unless otherwise
stated, must be returned by Member directly to the manufacturer per the
manufacturer’s warranty policy. The returned merchandise must be received at
Provider specified address no later than seven (7) business days from the date
of RMA issuance.
Do not write addresses or RMA numbers on the
outside of the manufacturer’s boxes. Member is responsible for retaining all
manufacturers’ boxes, packing material, manuals and CDs. All products must be
shipped freight prepaid and insured factory sealed in the original carton with
all hardware, software, manuals, cables, etc., intact.
Provider reserves the right to have a
Provider support specialist verify all defective products.
Upon receipt of the product and processing
of the proper documentation, appropriate credit will be issued.
Due to the price fluctuation, all product
returns are subject to current pricing upon receipt by Provider and/or a
minimum 20% restocking charge.
7. RESTRICTIONS AND
This is an Agreement does not grant Member any
license or any rights whatsoever in any software, code, technology hardware or
Intellectual Property used, referenced, or associated with any Provider
Solution. Any software, materials, customizations, software code, hardware or
technology used in connection with the Solutions shall be considered an Instrument
Member is responsible for communicating
clear and concise Deliverable requests; for reading and understanding
confirmation email notifications; and for paying billable amounts upon receipt
of invoice each month.
Member agrees to provide a single “Project
Coordinator” to coordinate Member materials gathering, approvals, work comments
and scheduling for any SOW, Additional Services or Solutions.
Agreements do not provide any ownership rights in the rental equipment to
Member, and all ownership rights remain with Provider. Additionally, Member
agrees to provide network connectivity access to the equipment on a continuous
24x7 basis throughout the agreement and physical access on a reasonably
scheduled and mutually agreed basis - not exceeding 10 days from the date of
agrees to use the Equipment in a good and careful manner and to comply with all
manufacturer’s requirements and recommendations respecting the Equipment. Member will not alter, modify, or administer
the hardware or hardware operating system.
agrees to maintain a manufacturer supplied warranty and extended warranty on
all rental equipment throughout the rental Term.
will maintain company insurance on the equipment throughout the rental term.
will not move or relocate any rental equipment without prior written agreement
assumes all risks of loss or damage to the Equipment from any cause. Member
agrees to be liable for any costs incurred by Provider in connection with the
repair or replacement of Equipment that is lost, stolen, destroyed, or damaged
and in need of repair, as solely determined by Provider at any time during or
following the term. If the Member provides an identical replacement model,
Provider reserves the right to charge a configuration fee to set up the new
Equipment to match the original rental item.
and no later than 10 days from the conclusion of the rental term or termination
of the Rental Agreement, Member agrees to return the Equipment to Provider at a
U.S. address provided by Provider, at Member’s sole cost. The Equipment must be
returned in the same condition as it was received, barring normal wear and
Equipment is not received by Provider within 30 days of the conclusion or
Termination of the Rental Term, Member agrees to pay all Provider costs
necessary to recover or replace the equipment in a manner determined at Provider’s
occurrence of any Event of Default under the Agreement, the Provider may,
without notice or demand, terminate the Rental Agreement, and take possession
of the Equipment, in addition to any other rights afforded to the Provider by
law. The Member is not released from paying damages sustained by the Provider
if the Provider terminates under this section.
any termination of this lease the Member fails or refuses to deliver the
Equipment to the Provider, the Provider may enter the Member's premises and
retake possession of the Equipment without legal process. The Member releases
any claim or right of action for trespass or damages caused by the Provider's
entry and repossession. The Member expressly waives all further rights to
possession of the Equipment and all claims for injury suffered through or loss
caused by the repossession.
Provider remedies are cumulative and may be exercised concurrently or
OWNERSHIP OF MATERIALS AND CREATIVE WORK
Administrative Control and Access
shall maintain exclusive control of Member network and technical administrative
credentials in a best practice encrypted format. Member shall retain ownership
of all Member owned equipment and all access credentials and documentation
shall be delivered or returned to Member immediately upon notice of termination
of this agreement by either party.
Custom Graphic Designs
Unless otherwise specified in writing, an
exclusive and Member-transferable license to use any graphic designs custom
created by Provider for Member under this Agreement is hereby granted to Member
by Provider for as long as this Agreement remains in good standing, or upon
payment in full of all billable amounts if the Service is terminated.
All photographs taken by Provider and
delivered to Member, are granted license for world-wide use on the Member
website only. Additional use in print or other electronic formats is subject to
separate agreement and reasonable and customary use fees.
Except as otherwise specifically set forth
in this Agreement, all right, title and interest in and to all, (i) registered
and unregistered trademarks, service marks and logos; (ii) patents, patent
applications, and patentable ideas, inventions, and/or improvements; (iii)
trade secrets, proprietary information, and know-how; (iv) registered and
unregistered copyrights including, without limitation, any forms, images,
audiovisual displays, text, software; (v) all divisions, continuations,
reissues, renewals, and extensions of any of the foregoing now existing or
hereafter filed, issued, or acquired; and (vi) all other intellectual property,
proprietary rights or other rights related to intangible property which are
used, developed, comprising, embodied in, or practiced in connection with any
of the Provider Services identified herein (“Provider Intellectual Property ”)
are owned by Provider or its licensors, and Member agrees to make no claim of
interest in or ownership of any such Provider Intellectual Property. To the
extent that Member requests any “Derivative Work” (that is, any work
that is based upon one or more preexisting versions of a work provided to
Member, such as an enhancement or modification, revision, translation,
abridgement, condensation, expansion, collection, compilation or any other form
in which such preexisting works may be recast, transformed or adapted, and any
other work so defined under applicable law), such Derivative Work shall be
owned by Provider and all right, title, and interest in and to each such
Derivative Work shall automatically vest in Provider. Provider shall have no
obligation to grant Member any right in any such Derivative Work.
Member will not, directly or indirectly:
reverse engineer, disassemble, decompile, or otherwise attempt to discover the
Provider Intellectual Property or make any attempt to obtain source code to the
Provider Intellectual Property; or remove any proprietary notices or labels
from the Services or any software; or modify, translate, or create derivative
works based on the Services or any software; or copy, distribute, pledge,
assign, or otherwise transfer or encumber rights to the Services or any
Member acknowledges that no title to or
other interest in the Provider Intellectual Property is transferred to Member,
and that Member does not obtain any rights, express or implied, in the Provider
or its Services, other than the rights expressly granted in this Agreement.
Member has the right to use Provider
services only under the terms and conditions set forth herein.
Member materials, including all copy,
designs and data provided by Member to Provider will remain the sole and
exclusive property of Member or its affiliates and vendors, including, without
limitation, all user and organizational data, copyrights, and trademarks.
Nothing in this Agreement shall be construed to grant Provider any ownership
right in, or license to, Member materials except a license to use such
materials as necessary only to fulfill Provider obligations within the scope of
Third Party Licenses
Artwork, software, services or any creative
material sourced or procured from third parties by Provider is licensed only
material or service delivered. Acquisition of rights or license for any
additional use is the sole responsibility of Member. License or rights of use
for any service or material supplied by Member shall be the sole responsibility
of Member unless rights acquisition by Provider is specifically requested and
purchased as an additional Deliverable.
Member agrees to abide by all third-party
licenses acquired or utilized by Provider on behalf of Member.
and Provider may, during the course of the Services, have access to and acquire
knowledge from materials, data, systems, and other information of or with
respect to Member or Provider or clients or customers of Member or Provider,
which may not be known to the general public (“Confidential Information”).
and Provider agree that each will not use, publish, or divulge to any person,
firm, or corporation any Confidential Information belonging to the other party
without prior written approval of the other party, both during the term of this
Master Services Agreement and for at least five years thereafter.
will not use Member user lists or any other Confidential Information for any
purposes other than those intended with the Services or as required by law.
terms of this Agreement as well as details of web-application services are
confidential and may not be disclosed to anyone except as expressly required
necessary for fulfillment of Member responsibilities in this Agreement. Member
and Provider agree that use of either party’s logos or service marks and/or a
summary of responsibilities under this Agreement on Member and Provider
web-sites, in a manner subject to mutual approval, shall not violate this
10. SUBSCRIBER SOLUTIONS PARTICIPATION
acknowledges and agrees that Online Services may add, to the header or footer
of web pages utilizing those Services, a brief explanatory mention such as
“Powered by SureTech.com” with a word link to Provider’s description of the
11. DISCLAIMER OF WARRANTIES
AGREES THAT USE OF AND RELIANCE ON PROVIDER SERVICES ARE ENTIRELY AT MEMBER’S
OWN RISK. MEMBER AGREES THAT ALL SERVICES ARE PROVIDED ON AN “AS IS” AND
AS-AVAILABLE BASIS. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, TERMS,
CONDITIONS OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT MAKE ANY WARRANTY, TERM,
CONDITION OR REPRESENTATION THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR
ERROR FREE; NOR DOES PROVIDER MAKE ANY WARRANTY, TERM, CONDITION, OR
REPRESENTATION AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE
SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER
FROM PROVIDER OR THROUGH PROVIDER’S SERVICES SHALL CREATE ANY WARRANTY, TERM,
CONDITION, OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.
12. LIMITATION OF LIABILITY
NO EVENT SHALL PROVIDER OR PROVIDER’S AFFILIATES OR ANY OF THEIR RESPECTIVE
VENDORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT
LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT
OF THE SERVICES AND/OR THE FAILURE TO PROPERLY PERFORM THE SERVICES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH
HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
aggregate LIABILITY FOR ALL CLAIMS ARISING OUT OF and/or in any way related to
the subject matter of this agreement shall be limited to the lesser of (1)
Actual damages of Member, (2) amount of fees paid by Member to Provider under
this agreement during the preceding three months, or (3) One Thousand United
States Dollars (US$1,000).
claim with respect to Services provided or to be provided under this Agreement
(including, without limitation, any SOWs or other authorizations for work) must
be presented in writing to Provider within a reasonable time, and in no event
longer than sixty (60) days after the event for which the claim is presented; and
no action or other proceeding may be maintained against Provider unless such
action or other proceeding is commenced within six (6) months after the date on
which any such written claim is made.
13. MODIFICATIONS TO THIS MASTER SERVICES AGREEMENT
as otherwise specifically provided herein, Member agrees, during the term of
this Agreement, that Provider may: (i) amend the terms and conditions of this
Agreement as reasonably necessary for Provider to effectively maintain
Provider's business and viability of the services; and/or (ii) modify or
otherwise change the Services provided pursuant to this Agreement either in
whole or in part; and/or (iii) assign or transfer the rights and obligations of
this agreement as necessary or expeditious for Provider to deliver Member
Services and Solutions to Member. All amendments or modifications shall be
effective immediately upon being updated, with respect to this agreement, on
this web page; or with respect to Services, at the sole, reasonable and professional
discretion of Provider. By continuing to use Provider Services, subject to the
Satisfaction Guarantee, Member agrees to be bound by the Agreement with respect
to the Services used, as modified and amended. No employee, contractor, agent
or representative of Provider is authorized to alter the terms and conditions
of this Agreement and Member agrees that this Agreement supercedes any other
oral or written agreements.
TERM AND TERMINATION
Solutions are available in either a
Month-to-Month or an Annual Subscription format. The Month-to-Month Agreement
automatically renews each month for another month until cancelled by the
Member. In this format, the Member will incur full monthly solution costs each
month the subscription is in effect, with no proration available. If any Member
data is maintained on a subscription solution after the 25th of any month, a
full monthly subscription cost for the following month will be incurred. These
charges will continue until all data is removed prior to the 25th of the final
Annual Subscription Agreements are long-term
contracts that offer reduced resource costs for both the Member and the
Provider due to a larger upfront commitment. This arrangement entails higher
initial costs for the Provider, due to upfront service provisioning and a
longer commitment to payment by the Member. These Agreements remain effective
until the end of the Subscription Term as specified in the most recent
Member-approved quote, or as listed on the Member's most recent paid invoice,
whichever is later."
At the end of each Subscription Term, the
Agreement will automatically renew for another 12 months (Auto-Renewal),
starting the day after the previous Term ends (Anniversary Date). The
Auto-Renewal will continue each year unless cancelled in writing three
months before the Anniversary Date (the Minimum Notice Date).
Auto-Renewal will proceed on the Minimum
Notice Date each year unless the Member provides written cancellation
instructions to the Provider prior to this date. In case of a request for
service updates or changes, a new Annual Subscription Term can be set with a
fresh 12-month term starting the month when the updated service begins.
Member can request changes to Annual
Subscription item quantities, however, at least the minimum quantity of
subscription items in place at the end of the first month of the Current annual
term (the Minimum Subscription Charges) will apply for the full current Annual
If the Member cancels the Annual
Subscription Term prior to its End Date, an Early Termination Fee will be
applied. This fee is equal to the total Minimum Subscription Charges for all
remaining months of the current Subscription Term at the time Notice of
Cancellation is received by Provider.
Both Month-to-Month and Term Agreements can
be terminated with a 30-day written notice to the Provider. The termination
date for Month-to-Month agreements is the 25th of the month following the month
in which the Member's termination notice is given.
For Annual Subscription Agreements, the
termination date can be chosen by the Member under two conditions as follows: A)
If notice is given prior to 30 days from the end of the active Agreement Term,
the same as a Month to Month terms upon payment of the Early Termination Fee
specified on the invoice; OR B) the 25th day of the last month of the term if
notice is given to not renew the term prior to Minimum Cancelation Notice Date.
The terms of this Agreement shall continue to apply to Services rendered
through the effective date of termination.
On termination, all sums, materials, or
equipment owed to the Provider will be due immediately, including full payment
for all remaining months of any Term Agreements and the return and
certification of any Provider rental equipment.
Non-payment of billable charges constitutes
a Member request to terminate Services as of the date the unpaid charges were
first due. The Provider reserves the right to terminate Services for any reason
with 3 months’ prior notice. Immediate termination can occur in the event of a
material breach by the Member.
Either party can terminate this Agreement
effective upon written notice if the other party becomes insolvent, files for
bankruptcy, dissolves, is subject to proceedings to settle company debts or
ceases to do business. The confidentiality obligations of both parties survive as
long as practicable, but not less than two years from the expiration or
termination of this Agreement.
Member will not assign or otherwise transfer
this Agreement or any Member rights and obligations under this Agreement,
without Provider prior written consent. Any assignment or transfer in violation
of this Section will be void. Provider may assign this Agreement without Member
consent (a) in connection with a merger, acquisition, or sale of all or
substantially all of our assets, or (b) to any affiliate or as part of a
corporate reorganization; and effective upon such assignment, the assignee is
deemed as substitute party to this Agreement and Provider is fully released
from all of its obligations and duties to perform under this Agreement. Subject
to the foregoing, this Agreement will be binding upon, and inure to the benefit
of the parties and their respective permitted successors and assigns.
the term of this Agreement, and for a period of twelve (12) months thereafter,
Member agrees not to, directly or indirectly, solicit, recruit or employ any
employee of Provider without the prior written consent of the chief executive
officer of Provider. Member acknowledges that its failure to honor this
non-solicitation provision could result in Provider suffering irreparable harm.
As the exact amount of such damages cannot be readily quantified, upon a breach
of this non-solicitation provision, Member shall pay to Provider, as liquidated
damages (and not a penalty), the sum of $50,000 for each such breach. Neither
the existence of that liquidated-damages provision nor payment of liquidated
damages for any such breach in any way limits Provider’s additional right to
seek injunctive or any other equitable remedies respecting any such breach or
continuing breach. In addition, during the term of this Agreement, and for a
period of twelve (12) months thereafter, Provider agrees not to, directly or
indirectly, solicit, recruit or employ, any employee of Member without written
consent from Member.
16. FORCE MAJEURE
shall not be liable for nonperformance, delay, errors, data loss, and/or any
other loss or damage caused in whole or in part by any event beyond Provider's
reasonable control, including, but not limited to acts of God, war,
hostilities, revolution, civil disorder, national emergency, strikes, lockouts,
unavailability of supplies, breakdown of plant or machinery, default of
suppliers or sub-contractors, epidemics, fire, flood, earthquake, storm, force
of nature, explosion, embargo, or any law, proclamation, regulation, ordinance,
or other act or order of any court, government, or governmental agency.
17. INDEPENDENT CONTRACTOR
relationship of Provider and Member established by this Agreement is that of
independent contractors (and not, without limitation, any employment
relationship), and nothing contained in this Agreement shall be construed to
(i) give either party the power to direct and control the day-to-day activities
of the other; (ii) deem the parties to be acting as partners, joint venturers,
co-owners, or otherwise as participants in a joint undertaking, or as having a
fiduciary duty toward one another; or (iii) allow either party to create or
assume any obligation on behalf of the other party for any purpose whatsoever.
notice or other similar communication required or permitted hereunder shall be
in writing or contemporaneously confirmed in writing and will be sent by
electronic mail to one or more of the respective principals and/or employees of
the party regularly dealing with matters relating to the subject matter of this
Agreement; provided, however, that any notice (x) alleging a breach or default,
or an event or condition that if not remedied or cured would become a breach or
default, on the part of the other party to this Agreement, or (y) terminating
or purporting to terminate this Agreement, or (z) declining or rejecting any
Deliverable or Service, must be sent by electronic mail (a) in the case of
Provider to with the subject Attention: President], and (b) in the case
of Member, to it at the email address and to the attention of the person listed
in the information furnished by Member in connection with Member’s acceptance
of this Agreement. Either party may change its contact person for notices
and/or address for notice by means of notice to the other party given in
accordance with this section.
19. DISPUTE RESOLUTION
the case of any disputes or claims under or otherwise concerning this
Agreement, the parties shall first attempt in good faith to resolve their
dispute informally, or by means of commercial mediation, without the necessity
of a formal proceeding.
dispute or claim arising out of or relating to this Agreement, or the breach
thereof, which cannot otherwise be resolved informally as provided above shall
be resolved by arbitration conducted in accordance with the commercial
arbitration rules of the American Arbitration Association ("AAA"),
and judgment upon the award rendered by the arbitral tribunal may be entered in
any court having jurisdiction. The arbitration tribunal shall consist of a
single arbitrator mutually agreed by the parties, or in the absence of such
agreement within thirty (30) calendar days from the first referral of the
dispute to the AAA, designated by the AAA. The place of arbitration shall be
New York, New York, USA, unless the parties shall have agreed to another
location within fifteen (15) calendar days from the first referral of the
dispute to the AAA. The arbitral award shall be final and binding. The parties
waive any right to appeal the arbitral award, to the extent a right to appeal
may be lawfully waived.
arbitration proceedings contemplated by this section shall be as confidential
and private as permitted by law. To that end, the parties shall not disclose
the existence, content or results of any proceedings conducted in accordance
with this section, and materials submitted in connection with such proceedings
shall not be admissible in any other action or other proceeding, provided,
however, that this confidentiality provision shall not prevent a petition to
vacate or enforce an arbitral award, and shall not bar disclosures required by
party retains the right to seek judicial assistance: (i) to compel arbitration,
(ii) to obtain interim measures of protection prior to or pending arbitration,
(iii) to seek injunctive relief in the courts of any jurisdiction as may be
necessary and appropriate to protect the unauthorized disclosure of its
proprietary or confidential information, and (iv) to enforce any decision of
the arbitrator, including the final award. Irrespective of the arbitration
provision above, Provider, at Provider's sole and absolute discretion, retains
the right to seek judicial assistance, in any court in which Member is subject
to jurisdiction, to pursue a debt, damages, enforcement or injunctive relief:
(i) due to Member failing to pay amounts payable under this agreement, or (ii)
alleged or suspected fraud, misrepresentation, misuse, abuse or theft with
respect to Member use of the Services.
20. GOVERNING LAW
disputes related to the Services provided pursuant to this Agreement shall be
governed in all respects by and construed in accordance with the laws of the
State of New York, United States of America, excluding its conflict-of-laws
21. INTERPRETATION; MISCELLANEOUS
may not, without the prior written consent of Provider, assign this Agreement,
in whole or in part, either voluntarily or by operation of law, and any attempt
to do so shall be a material default of this Agreement and shall be void. All
covenants of this Agreement shall be binding upon, and shall inure to the
benefit of, the parties and their respective successors, and permitted assigns.
None of the provisions of this Agreement shall be deemed waived or modified,
except by an instrument in writing specifically doing so and duly executed by
the party against whom enforcement of such waiver or modification is sought to
be enforced. If any words or phrases in this Agreement have been stricken out
or otherwise eliminated (in a rider or similar addendum, a SOW, or otherwise),
whether or not any other words or phrases have been added, this Agreement shall
be construed as though the words or phrases so stricken out or otherwise
eliminated were never included in this Agreement, and no implication or
inference shall be drawn from the fact that those words or phrases were so
stricken out or otherwise eliminated. This Agreement is solely to establish
various rights between the parties to this Agreement, and no “third-party” or
other person not a party to this agreement, shall be entitled to any rights or
benefits from this Agreement or to rely on this Agreement in any way. This
Agreement shall be construed fairly without regard to any presumption or other
rule requiring or permitting inference or construction against the party
causing this agreement to be drafted. Section headings are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning
terms of this Services Agreement are severable. If any term or provision is
declared invalid or unenforceable, in whole or in part, that term or provision
will not affect the remainder of this Agreement; this Agreement will be deemed
amended to the extent necessary to make this Agreement enforceable, valid and,
to the maximum extent possible consistent with applicable law and consistent with
the original intentions of the parties; and the remaining terms and provisions
will remain in effect.
23. ENTIRE AGREEMENT
Agreement, including agreed upon SOWs, is entered into in good faith by Member
and Provider and constitutes the entire understanding and agreement between
Provider and Member with respect to the Services contemplated, and supersedes
any and all prior or contemporaneous oral or written representation,
understanding, agreement, or communication between Provider and Member concerning
the subject matter hereof.
1997-2024, SureTech, Inc. All Rights Reserved.
We’ll be in touch soon and look forward to being of service.
If you have any additional questions or need to reach us at any time you can reach us at firstname.lastname@example.org or 800-882-8701 extension 2.
With all best wishes,
Your SureTech Solutions Team