IT Support Miami / DYNAMIC MEDIA TECHNOLOGIES, INC. Master Sales and Services Agreement

Transcription

1 DYNAMIC MEDIA TECHNOLOGIES, INC. is doing business as IT Support Miami. Any company, person or organization using The Dynamic Media Technologies Services including but not limited to Software Development, Systems Administration / Installation or I-Services is henceforth referenced as Client. I. SERVICES CUSTOM SOFTWARE DEVELOPMENT Software and application development will be based on the design specifications as defined in the Scope of Services. Upon approval from the Client, Dynamic Media Technologies (Dymedtec) shall thereupon commence final development of Software that will substantially conform to the requirements set forth in the Scope of Services. SYSTEMS ADMINISTRATION AND INSTALLATION Systems administration and installation will be based on the design specifications as defined in the Scope of Services or may be verbal based on a specific requirements as dictated by Client. Upon approval from the Client, Dymedtec shall thereupon commence systems administration and or installation that will substantially conform to the requirements set forth. INTERNET ACCESS AND HOSTING SERVICES (I- SERVICES) The Dynamic Media Technologies Internet Access and Hosting Services, I-Services will be based on the design specifications as defined in the Scope of Services or may be verbal based on specific requirements as dictated by Client. Upon approval from the Client, Dymedtec shall thereupon commence services that will substantially conform to the requirements set forth. II. CHANGES IN PROJECT SCOPE If at any time following Client s acceptance of the design specifications Client should desire a change in Dymedtec's performance under this Agreement that will alter or amend the Specifications, Client shall submit to Dymedtec a written proposal specifying the desired changes. Dymedtec shall not be authorized or obligated to perform any additional services prior to its approval of the design specifications modifications. For purposes of this Agreement, each design specifications modification duly authorized in writing by Client and Dymedtec shall be deemed incorporated into and made part of this Agreement. III. SERVICES ACCEPTANCE TESTING CUSTOM SOFTWARE INCLUDING WEB DESIGN Upon completion of the final development and installation, acceptance testing shall be performed on the Software in its entirety to determine whether the Software satisfies the acceptance criteria and operates with internal consistency. Client shall have 10 days from the delivery and installation of the Software to inspect, test and evaluate it to determine whether the Software satisfies the acceptance criteria in accordance with procedures set forth in the Scope of Services, or as established by Dymedtec and approved by Client prior to testing. If the Software does not satisfy the acceptance criteria, Client shall give Dymedtec written notice stating why the Software is unacceptable. Dymedtec shall have 45 days from the receipt of such notice to correct the deficiencies. Client shall then have 15 days to inspect, test and reevaluate the Software. If the Software still does not satisfy the acceptance criteria, Client shall have the option of either: (1) repeating the procedure set forth above, or (2) terminating this Agreement pursuant to the section of this Agreement entitled "Termination for Default. If Client does not give written notice to Dymedtec within the initial 15-day inspection, testing and evaluation period or any extension of that period, that the Software does not satisfy the acceptance criteria, Client shall be deemed to have accepted the Software upon expiration of such period. If the Software is used in Production then, by default, the Client shall be deemed to have accepted the Software SYSTEMS ADMINISTRATION / INSTALLATION / TECHNICAL SUPPORT Upon completion of the administration and installation, acceptance testing shall be performed on the System in its entirety to determine whether the Services performed satisfies the acceptance criteria and operates with internal consistency. ONCE DYMEDTEC RELEASES THE SYSTEMS TO THE CLIENT OR THE SYSTEMS ARE USED IN A OR AS PART OF A PRODUCTION ENVIRONMENT, DYMEDTEC DOES NOT WARRANT HARDWARE (OTHER THAN MANUFACTURE WARRANTY), OR SOFTWARE AND OR CONFIGURATION FAILURES FOR ANY REASON INCLUDING FAILURES DUE TO MISSING OR LOST DATA, SYSTEM OR NETWORK OUTAGES AND CHANGES TO CONFIGURATION. CLIENT ASSUMES FULL RESPONSIBILITY AND ANY FINANCIAL LOSS FOR ANY FAILURES INCLUDING MISSING OR LOST DATA, OUTAGES AND CHANGES TO OR RECONFIGURATION OF SYSTEMS OR DATA. CLIENT, AT ALL TIMES, WILL INDEMNIFY AND KEEP HARMLESS DYMEDTEC FROM ALL LOSSES DAMAMGE, LIABILITIES AND EXPENSES WHICH ARRISE FROM ANY FAILURES INCLUDING MISSING OR LOST DATA, OUTAGES AND CHANGES TO OR RECONFIGURATION OF SYSTEMS OR DATA. DYMEDTEC IS NOT RESPONSIBLE FOR DATA BACKUPS. If the Services of administration and installation performed does not satisfy the acceptance criteria and is NOT USED IN A PRODUCTION ENVIRONMENT OR MODIFIED BY CLIENT, Dymedtec will correct the deficiencies at Dymedtec s standard rate. If the Services of Page 1 of 5

2 administration and installation still does not satisfy the acceptance criteria, Client shall have the option of either: (1) repeating the procedure set forth above, or (2) terminating this Agreement pursuant to the section of this Agreement entitled "Termination for Default. By requesting and receiving service, Client (1) agrees to waive any claims against Dymedtec for invasion of privacy or similar causes of action; and (2) agrees that in no event will Dymedtec or its suppliers be liable for direct, indirect, special, punitive or consequential damages, for incidents which may occur as a result of diagnostic sessions or support services, including, without limitation, any lost profits, business interruption, loss of programs or other data. INTERNET ACCESS AND HOSTING SERVICES (I- SERVICES) THE DYNAMIC MEDIA TECHNOLOGIES INTERNET ACCESS AND HOSTING SERVICES ALOS REFERRED TO AS I- SERVICES, AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN I-SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. DYMEDTEC AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT OF PROPRIETARY RIGHTS. DYMEDTEC AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF I-SERVICES. DYMEDTEC AND ITS LICENSORS DISCLAIM, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH I- SERVICES. DYMEDTEC AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON I-SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY I-SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED IN I-SERVICES. CLIENT UNDERSTANDS AND AGREES THAT ANY DOWNLOADED OR OTHERWISE OBTAINED MATERIAL OR DATA THROUGH THE USE OF I-SERVICES IS AT THE CLIENT S OWN DISCRETION AND RISK AND THAT THE CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO THE CLIENT S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. THIS INCLUDES ANY MALWARE PROGRAMS, VIRUSES, ADWARE, SPYWARE, TROJANS, PORNOGRAPHY, ETC THAT NEGATIVELY AFFECT THE FUNCTION OF THE CLIENT S BUSINESS, NETWORK, COMPUTER, AND OR DATA. IV. COMPENSATION Client agrees to pay in US Dollars, and Dymedtec agrees to accept compensation in accordance with the Proposal and or as a line-item service to which these terms are a part. For work conducted under a proposal for project specification, service plan or proposal, a payment schedule will be provided. For work conducted as a line-item service (i.e. systems administration or installation), it is required that 100% of total sale price of equipment, including tax, shipping and handling, be prepaid at placement of order and 100% of total sale price for service when service is rendered. ALL WORK WILL BE BASED UPON TIME AND MATERIALS AND WILL BE BILLED ACCORDINGLY. Dymedtec shall submit an invoice for work completed or prepaid hours or technical support plans. Payment to Dymedtec shall be made within 15 days of Client s receipt of Invoice or as specified in the work order or proposal. An interest charge of 1.5 percent per month (an 18 percent annual percentage rate) on the total balance, or $25 per month, whichever is greater, from the 30th day after the date of the statement until it is paid in full. Interest charges apply to specific monthly statements on an individual statement basis. Any payments made on past due statements are applied first to the oldest outstanding statement. A fee of $35 will be applied for any payment returned for insufficient funds or any related financial processing error. There is a 20% fee for restocking / returned merchandise. Any discounts applied are valid for invoices that are paid on time as per the terms specified. Prices quoted are exclusive of any applicable taxes and shipping and handling unless otherwise indicated. All products are shipped FOB Origin (insurance and freight to be paid by Client). Hardware title passes only upon payment in full, but risk of loss passes upon delivery by Dymedtec to the carrier or to the Client s representative. Any fees associated with credit card payments, returned checks or any other fee for payment processing will be the responsibility of the client and will subject to the terms previously detailed. COMPANY OFFICER(S), OWNER(S), AND OR REGISTERED AGENT (S) ARE PERSONALLY LIABLE FOR ALL UNPAID BALANCES FOR ALL ITEMS PURCHASED AND ALL WORK CONDUCTED. DYMEDTEC IS ENTITLED TO RESONBLE ATTORNEY FEES FOR COLLECTIONS. Hourly labor is estimate only based upon $99/hour unless specified under work proposal. Actual time may vary within 10% of proposed and will be billed at rate indicated. Both Dymedtec and Client must agree to change of scope impacting the installation or configuration in writing prior to execution. Installation estimates are based upon a continuous setup without interruption caused by any new or existing hardware, proprietary application, software, conflicts, or other matters beyond Dymedtec's control. Equipment, setup and configurations cannot be used for production or modified by Client until the entire project is complete, validated, and accepted by Client and Dymedtec. Third party installation changes, monthly charges, usage charges and any other charges are not included and are Page 2 of 5

3 the responsibility of Client. Client is responsible for any and all costs associated with facility or housing modifications for the project such as wiring, cooling fans or appliances. Client is responsible for any and all data and/or security concerns unless otherwise detailed in writing. The Client must properly test proper backups, fault tolerance and/or redundancy before releasing system(s) into production. V. OWNERSHIP OF PRODUCTS AND MATERIALS Software Product Source Code which is developed by Dymedtec in performance with Dymedtec s Services shall be the property of Dymedtec. Dymedtec hereby reserves all rights, title, and interest of any type whatsoever in connection with Software Product Source Code created or developed under this Agreement, including but not limited to copyrights, trademarks, service marks, patent rights, publication rights, marketing rights, and distribution rights and rights regarding titling, authors' names, right to create derivative works. Client agrees not to assert any rights, and not to establish any claim under patent or copyright law to the Software Product Source Code. Dymedtec does not provide Software Product Source Code and reserves the right not to make available the source code. The Client or the client s agent will not and or attempt to decompile, de-program or decipher the Software Product. Dymedtec makes no claim or warranty for 3 rd Party Software implemented for use in any Software Product or systems implementation. Client is responsible for all 3 rd Party Software Licensing and shall abide to 3 rd Party Software License Agreements. VI. LICENSING AND RIGHT TO USE Dymedtec grants the Client a seven-year license (Right- To-Use) to use the Software Product as designed and delivered. After the initial seven-year period has expired the Client may request in writing an additional one-year license. THE CLIENT MAY NOT MODIFY, DISTRIBUTE, RESELL OR SUB-LICENSE THE SOFTWARE PRODUCT WITHOUT WRITTEN AGREEMENT BY DYMEDTEC. VII. CONFIDENTIALITY Dymedtec and Client agree that this Agreement and the work performed hereunder shall be confidential. The Dymedtec and Client understands that during the course of the project, Dymedtec may receive confidential information and trade secrets of Client, and may be asked to create, improve, write, edit, review, alter, upgrade, modify, or otherwise handle or process tables of data, computer programs, reports, manuals, other documents, illustrations, inventions or other devices, and similar works that may contain or be considered confidential or trade secret material and that have or may have value to Client. Dymedtec s personnel shall not disclose any information to any party other than Client or individuals designated by Client concerning the applications or Project, including the nature or results of the work performed, and shall direct all comments or questions to Client or Client s designated representative. In the event Dymedtec is compelled by subpoena, court order, or administrative order ( Order ) to disclose any confidential information, Subcontractor shall promptly notify Client and shall cooperate with Client prior to disclosure so that Client may take necessary actions to protect such confidential information from disclosure. VIII. CUSTOM SOFTWARE WARRANTY Dymedtec warrants that the Software and documentation delivered to Client under this Agreement shall not infringe the copyright, patent or trade secrets of any third party. Dymedtec warrants that the Software Product will substantially conform to the agreed upon performance specifications, and will perform within the agreed upon software operating environment. Dymedtec will be expected to correct any final defects brought to its attention within the provisions of the acceptance 10 days from the acceptance date of the final product. Dymedtec responsibility will be limited its to correcting the defective software brought to its attention during the 10- day period. For purposes of this provision Software Product shall include, without limitation, any piece or component of software, middleware, custom interfaces, internal components, subroutines or integration components with commercial or other third party software. Where services are being furnished, e.g., consulting, systems integration, code or data conversion or data entry, the term Software Product shall include resulting deliverables. IX. SOFTWARE DEVELOPMENT ENVIRONMENT Dymedtec shall maintain the software development environment used to create the final product for three months after delivery of final product. If Dymedtec is required to re-establish such an environment for purposes of performing corrective or additional work for Client, Client agrees to pay associated costs. X. INDEPENDENT CONTRACTOR Dymedtec is an independent contractor, and is responsible for the means and methods of carrying out the scope of services and for the safety of its employees and agents. Dymedtec reserves the right to subcontract the performance of any services to lower-tier subcontractors. FOR A PERIOD OF 3 YEAR AFTER TERMINATION OF THIS AGREEMENT WITH DYNAMIC MEDIA TECHNOLOGIES, INC.: CLIENT SHALL NOT EMPLOY OR SEEK TO EMPLOY DYNAMIC MEDIA TECHNOLOGIES STAFF OR CONTRACTORS; AND Page 3 of 5

4 CLIENT SHALL NOT DIRECTLY NOR INDIRECTLY ENGAGE IN OR HAVE ANY INTEREST IN ANY STAFF OR CONTRACTORS OF DYNAMIC MEDIA TECHNOLOGIES, INC. THAT IS IN COMPETITION WITH ANY ASPECT OF DYNAMIC MEDIA TECHNOLOGIES, INC. BUSINESS OR WHICH INTERFERES IN ANY WAY WITH DYNAMIC MEDIA TECHNOLOGIES, INC. RENDERING SERVICE TO THEIR CLIENTS OR BUSINESS PARTNERS. ALTERNATIVELY, A FEE OF 30% THE STAFF OR CONTRACTOR YEARLY (2080 HOURS) SALARY OR FEE OR $25,000, WHAT EVER IS GREATER, BE PAID TO DYNAMIC MEDIA TECHNOLOGIES, INC. FOR REMOVING THE TIME PERIOD ASSOCIATED WITH THIS ITEM OF THIS AGRREMENT. XI. INDEMNIFICATION To the fullest extent permitted by law, Client shall defend, indemnify and hold harmless Dymedtec, Dymedtec s officers, directors, agents, and employees ("Indemnitees") from and against all claims, damages, losses and expenses (including attorneys' fees and other legal expenses) arising out of, or in connection with any negligent act or omission, willful misconduct or breach of contract by Dymedtec, its employees, or others for whom Dymedtec may be legally liable. XII. ASSIGNMENT Dymedtec may assign this Agreement without the prior written consent of Client. XIII. TERMINATION FOR CONVENIENCE. Dymedtec and or Client may terminate all or part of this Agreement for its convenience. In such event, Dymedtec shall be compensated for reasonable services performed up to the date of termination, and reasonable termination expenses as determined at the discretion of Dymedtec. Dymedtec will not be entitled to compensation for profit on services not performed. In the event any litigation or arbitration is commenced as a result of this Contract, Client shall be liable for Dymedtec s attorneys fees and costs resulting therefrom. TERMINATION FOR DEFAULT. If Dymedtec fails to provide the services in a manner satisfactory to Client or, if Dymedtec otherwise materially breaches this Agreement, then Client may, by written notice, terminate this Agreement if Dymedtec fails to cure or correct the default within a period of 30 days from the notice of noncompliance and threatened termination. Dymedtec may be entitled to termination expenses. In the event any litigation or arbitration is commenced as a result of this Contract, Client shall be liable for Dymedtec s attorneys fees and costs resulting there from. XIV. CHOICE OF LAW; JURISDICTION This Agreement shall be administered and interpreted under the laws of the state in which the Dymedtec s office responsible for the project is located. Jurisdiction of litigation arising from the Agreement shall be in that state. XV. SEVERABILITY If any of the provisions of this Agreement are held invalid or unenforceable under applicable law, the enforceability of the other remaining provisions shall not be impaired. XVI. INTEGRATION This Agreement represents the entire understanding of the parties as to the subject matter of this Agreement. No prior oral or written understanding shall be of any force or effect with respect to those matters. This Agreement may not be modified except in writing, signed by both parties. XVII. DISPUTES Dymedtec and Client may pursue their respective remedies at law or equity for any claims, controversy or dispute relating to this Agreement. XVIII. EXECUTION All work will be governed and conducted under this Agreement. XIX. LIMITATION OF LIABILITY - INTERNET ACCESS AND HOSTING SERVICES (I-SERVICES) UNDER NO CIRCUMSTANCES SHALL DYNMEDTEC OR ITS LICENSORS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF OR RELIANCE ON THE DYNAMIC MEDIA TECHNOLOGIES I-SERVICES (I-SERVICES). ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF DYNAMIC MEDIA TECHNOLOGIES OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON I-SERVICES, FROM INABILITY TO USE I- SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF I-SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON I-SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN I-SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON I-SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN I-SERVICES. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON- Page 4 of 5

5 PERFORMANCE OF I-SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, I-SERVICES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL DYMEDTEC OR ITS LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING. XX. CHANGES TO THIS AGREEMENT Dymedtec may change this Agreement periodically and as necessary and will make public by publishing the Agreement on the Dymedtec website. The Client s accepts the sole responsibility of obtaining the latest version of the Agreement. The Dymedtec Invoice provides Client notifications which direct the Client to the website to obtain the Agreement. BY PAYING THE INVOICE, THE CLIENT ACKNOWLEDGES THE AGREEMENT BEING AVAILABLE AND AUTOMATICALLY ACCEPTS THE TERMS OF AGREEMENT IN ITS ENTIRETY. Page 5 of 5