These Terms of Service (“Agreement”) governs the use of certain services and products offered by Precis Ebusiness Systems (“Precis”) d.b.a. EBIZPLATFORM and you as the individual, company or legal entity (“Customer”), together known as the “Parties”.
SECTION A: GENERAL PROVISIONS
Precis provides products and services pursuant to the terms of and conditions in this agreement. This agreement governs the purchase of Precis products (“Products”) and services (“Services”) by Customer in any order, statement of work or similar document , which are incorporated into this agreement by this reference and will be referred to as the “Order”.
This Agreement shall supersede and control any and all prior representations, warranties, conditions, statements, or agreements, whether written or oral, made by or on behalf of either Party to the other. The terms of this agreement are a legally enforceable contract between the parties we go into effect upon signing of any service order, clicking accept when prompted in any product, and/or accepting services through any document or web page that references this agreement and terms. By accepting the terms of the agreement you represent that you have the authority to bind the Customer to contracts and related obligations.
- INDEPENDENT PARTIES.
The Parties are independent entities. Nothing in this Agreement shall be construed or deemed to create an employer/employee, principal/agent, partnership, joint venture or any relationship between the Parties other than that of independent entities carrying out the terms and conditions of this Agreement.
Neither Party to this Agreement shall have any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the other Party except as expressly set forth herein.
- FORCE MAJEURE.
Performance may be interrupted or delayed due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, third parties, civil disorder, or the like. Both Parties shall make every reasonable effort to remedy service and return to normal operation but have no responsibility or liability for such interruptions or delays.
- TERM AND TERMINATION.
- The term of the Agreement shall be 12 months and commence on the date which Services were made available to Customer or assigned access rights, unless otherwise negotiated.
- The Agreement may be terminated by either party upon thirty (30) days notice prior to the start of the next 12 month term.
- Upon termination of this Agreement for any reason whatsoever, Customer shall immediately pay Precis all unpaid fees and amounts, irrespective to the fact that such amount has been invoiced or not.
- Survival. In the event of any termination of this Agreement, Sections 9 and 10 hereof shall survive and continue in effect.
- During the term of any Order, Customer will pay Precis the rates and charges for a particular Product or Service as set forth in the Order. Unless otherwise specified in the Order, Precis will begin billing Customer in full for all recurring charges when the Precis Services are made available to Customer per section A.
- Prices quoted for professional services, customizations, setup and/or project deliverables are good faith estimates based on knowledge gathered and used to assemble the Order. Actual final billings may differ due to changes and revisions requested by Customer, change in project scope or change in project timing.
- Precis may adjust rates and charges or impose additional rates or charges on Customer to recover amounts that Precis is required to pay third parties on behalf of Customer for any Product or Service.
- PAYMENT TERMS.
- Payment. Customer will pay invoices in full in U.S. currency within 30 days of the invoice date. Failure to make payment of amounts past due within 5 days following notice of non-payment may, at Precis’ option result in immediate suspension of services and/or termination of the Agreement.
- Deposits and Payments. All payments and deposits made to Precis are non-refundable. Set up fees for all Product subscriptions included in the order will be invoiced at project start. Precis may require a deposit to start work on new projects.
- Delinquency and Default. If Customer fails to pay charges for Services when due, Precis will charge Customer interest on those charges in the amount of 1 ½ % per month, or $5.00 USD, whichever is greater, plus collection agency fees, attorneys’ fees, court costs, and other expenses incurred by Precis in seeking to collect past due payments or otherwise enforce the Agreement.
- Disputed Invoice Charges. Unless Customer delivers to Precis a written objection within ten (10) business days from date of any invoice, such invoice shall be conclusive upon Customer as to the correctness of the items and costs, fees, and charges therein and shall be conclusive upon Customer as a true and correct account stated.
- Supension of Services. Without prejudice to the Parties other rights and remedies under this Agreement, and subject to early termination provisions, Precis may suspend Services and/or access to System(s) without penalty if (a) Customer fails to make payments as required; (b) Customer refuses to adhere to terms or conditions contained in any Order or Agreement; or (c) Precis is required to suspend such performance in order comply with any law or a request by any governmental authority with jurisdiction.
- INTELLECTUAL PROPERTY RIGHTS.
- Confidentiality. Precis shall maintain in strict confidence, and shall use and disclose only as authorized by Customer, all information of a competitively sensitive or proprietary nature that it receives in connection with the work performed for Customer. Precis shall restrict access of any confidential information to such of its personnel, who need to know it for the purpose of execution and will require of such personnel that they agree to do be bound by terms of similar import as mentioned herein. Customer shall take reasonable steps to identify for the benefit of Precis and its personnel any information of a competitively sensitive or proprietary nature, including by using confidentiality notices in written material where appropriate. These restrictions shall not be construed to apply to (1) information generally available to the public; (2) information released by Customer generally without restriction; (3) information independently developed or acquired by Precis or its personnel without reliance in any way on other protected information of Customer; or (4) information approved for the use and disclosure of Precis or its personnel without restriction. Notwithstanding the foregoing restrictions, Precis and its personnel may use and disclose any information (1) to the extent required by an order of any court or other governmental authority or (2) as necessary for it or them to protect their interest in this Agreement, but in each case only after Customer has been so notified and has had the opportunity, if possible, to obtain reasonable protection for such information in connection with such disclosure.
- Ownership of Work Product. All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, or works of authorship developed or created by Precis or its personnel relating to Customer’s work (collectively, the “Work Product”) shall belong exclusively to Customer and shall, to the extent possible, be considered a work made for hire for Customer within the meaning of Title 17 of the United States Code (in relation to United States copyright laws). Precis automatically assigns, and shall cause its personnel automatically to assign, at the time of creation of the Work Product, without any requirement of further consideration, any right, title, or interest it or they may have in such Work Product, including any copyrights or other intellectual property rights pertaining thereto. Upon request of Customer, Precis shall take such further actions, and shall cause its personnel to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment.
- Residual Rights of Personnel. Notwithstanding anything to the contrary herein, Precis and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, knowhow, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any confidential or proprietary information of Customer and without any unauthorized use or disclosure of Work Product. Nothing in this agreement shall be construed to negate or limit the proprietary rights of Customer or Precis under this Agreement.
- IN NO EVENT WILL PRECIS BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, GENERAL, INDIRECT, OR SPECIAL DAMAGES RELATING IN WHOLE OR IN PART TO USE OF, OR INABILITY TO USE, PRECIS PRODUCTS OR SERVICES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, PRECIS WILL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER FOR ANY CLAIM(S) RELATING IN ANY WAY TO ANY THIRD PARTY FEATURE. PRECIS MAKES NO WARRANTY THAT ACCESS TO OR USE OF PRODUCTS, SYSTEMS, OR SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE, OR ERROR-FREE. CUSTOMER ACKNOWLEDGES SERVICE MAY ENTAIL THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS, OR LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA
- EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, PRECIS PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PRECIS MAKES NO WARRANTY THAT USE OR ACCESS TO PRECIS’ PRODUCTS AND SERVICES WILL BE UNINTERUPTED OR ERROR-FREE.
- Total Liability. Customer agrees that Precis’ liability hereunder for damages, regardless of the form of action, shall not exceed the total amount paid or received for services under the applicable estimate or in the authorization for the particular service if no estimate is provided.
- Claims. No claim or action, regardless of form, arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby may be brought by either Party more than one (1) year after the events which gave rise to the claim or action become known.
- Indemnification. Each Party shall indemnify, defend, and hold harmless the other Party and its directors, officers, employees, and agents from and against any and all claims, liabilities, obligations, judgments, causes of action, costs, and expenses (including reasonable attorney fees) arising out of the performance or failure to perform in accordance with the terms of this Agreement including on the part of either Party’s agents or (sub) contractors. The terms of this Section shall survive the expiration or termination of this Agreement.
If any term or provision of this Agreement or the application thereof to any person or circumstance becomes invalid or unenforceable, the remainder of this Agreement shall not be affected thereby but this Agreement shall be valid and enforceable to the fullest extent.
- GOVERNING LAW.
The parties agree that no action by one party against the other may be brought in any court, in any jurisdiction, except according to the terms of this paragraph. The Parties shall first use mediation to resolve and dispose of any disputes, differences or claims arising out of this Agreement, or the interpretation or performance thereof. If a resolution cannot be achieved through mediation between the Parties within thirty (30) Calendar Days, either Party may serve upon the other a written notice that the mediation has reached an impasse and the dispute shall be resolved in accordance with Section 13 below.
- BINDING ARBITRATION.
All disputes arising out of or relating to this agreement or its subject matter–including disputes as to validity, performance, breach, or termination—which cannot be settled by mediation, shall be resolved exclusively by binding arbitration between the parties before one arbitrator selected, according to and applying the rules of the American Arbitration Association. The parties agree to venue and exclusive jurisdiction in Colorado. The award rendered by the arbitrator shall be final and binding upon the Parties. The award shall state the reasons upon which it is based. Judgment on the award may be entered in any court of competent jurisdiction. The referral of a dispute, difference or claim to arbitration shall not relieve either party from their obligations under this agreement.
This Agreement may be amended from time to time and posted at http://ebizplatform2020.azurewebsites.net/terms . Precis will notify Customer of any amendments or changes via email or in writing.
Waiver by either Party hereto of any default or breach by the other Party of any provision herein shall not be construed to be a waiver of any other default or breach of the same or other provision herein.
The titles utilized in this Agreement are for convenience only and are not to be construed as part of this Agreement nor to define or limit the scope or intent of the provisions herein.
- ENTIRE UNDERSTANDING
This Agreement and any Order or other related documents executed hereunder, constitute the parties entire understanding and supersede any oral representations, understandings and offers related to the subject matter hereof. In the event Customer is an existing Customer with an unexpired MSA or other Service Agreement, said agreement(s) shall be superseded by this Agreement and any Orders thereunder shall become subject to this Agreement. Precis reserves the right to modify this agreement from time to time upon written notice to Customer.
This Agreement may be executed in counterparts, including facsimile transmissions and/or electronic signatures, each of which shall be deemed an original against any party whose signature appears on such counterpart and all of which together shall constitute one and the same Agreement.
SECTION B: PROFESSIONAL SERVICES AGREEMENT
- The Products and Services mentioned in the Order shall define Scope.
- Normal Rate. Precis shall charge a rate of $190 per hour for professional services absent a prepaid agreement. This rate may be adjusted on the first (1st) day of January for the upcoming year. Customer will be notified 60 days prior to any rate increase.
- In Scope. Items considered in scope of the Order will consists of the following:
- Professional Services – All deliverables specifically mentioned in the Order.
- Product Setup and Procurement – Setup, configuration, installation, and procurement of all Products specifically listed in the Order.
- Out of Scope.
- Every item (images, data, content, text, logos, photos, etc.) received by Precis from Customer will be considered the final version of the item. Any modification following receipt of any item will be considered a revision and may be subject to additional charges.
- Any requirement, feature, Product or Service not specifically listed in the Order will be considered out of scope and may be subject to additional charges.
- Revisions, Changes and Approvals. Revisions to deliverables contained in any Order will be considered a change and out of scope. Revisions may affect schedule and total cost. Customer may be required to provide approvals and acceptance during the project for certain deliverables. Any revisions to previously approved or accepted deliverables may be subject to additional charges. If Customer believes that a substantial change in Scope is necessary or desirable, Customer shall submit a request for a Change Order. Precis shall then provide Customer with a written Change Order that will be incorporated into the Scope of the Order. Customer shall notify Precis if Customer elects to proceed with the change within 5 business days. Precis shall not be required to issue a Change Order for any revision or change unless a Change Order is specifically requested by Customer. All customer requests for revisions via change order, email, telephone, facsimile, text message or in person shall constitute approval and acceptance of such changes and any related charges.
- Reimbursement. Customer shall be responsible for all costs incurred including, but not limited to, pay per click advertising, directory registrations, pay-for-inclusion, travel, lodging, secure certificates, publishing, reproduction, postage, printing, and mileage. Precis will invoice all expenses incurred at the conclusion of each month.
- Ongoing Maintenance, Support and Training. If included in the Order, Precis will provide ongoing maintenance, support and training services. Monthly service contracts may be used on existing Web properties only. Unused time remaining on expired service contracts will not be reimbursed to Customer or rolled over into future contracts. In the absence of a service agreement, ongoing maintenance and support will be handled on a per incident basis and billed on the next invoice according to prevailing rates.
- After Hours. After hours services will be billed at 2x normal rate. After hours shall be defined as any professional services rendered, at the request of the Customer, between 6:00 PM and 6:00 AM Mountain, any weekend, or any holiday.
- EXPECTATIONS OF CUSTOMER.
- Provide Precis will timely responses for approvals and adjustments according to a mutually agreed to Order.
- Grant Precis access to any systems that may be impacted by services for testing, transfer, and/or quality assurance purposes.
- Maintain desktop, browser and other internal software in a manner which will allow Customer uninterrupted use of Products and Services governed by this Agreement.
- Customer represents to Precis and unconditionally guarantees that any element of text, graphics, photos, designs, trademarks, artwork, or anything else furnished to Precis for inclusion are owned by Customer or that Customer has permission from the rightful owner to use each of such elements. Customer will indemnify Precis from any claim or lawsuit (including costs or attorney’s fees incurred by Precis) arising from the use of such Customer-furnished elements
SECTION C: PRODUCT SUBSCRIPTION AGREEMENT
Precis provides hosted software products, web hosting, and email services according to the terms of and conditions in this Agreement. This agreement governs the usage and service levels for such products and systems.
- SERVER READY MATERIALS.
Unless otherwise arranged by Precis under separate agreements, Customer will provide Precis with material and data in condition that is “server ready”, which is in a form requiring no additional manipulation on the part of Precis. Unless otherwise arranged, Precis shall make no effort to validate this information for content, correctness or usability. Modifications, data entry or data migration services required to make Customer materials server ready will be billed at prevailing rates.
- CUSTOMER KNOWLEDGE.
Use of Precis subscription services require a certain level of knowledge in the use of Internet technologies, languages, protocols, and software. Customer agrees that Precis shall not be responsible for providing knowledge or support for issues related to, but not limited to, web publishing, graphic design, FTP, email, HTML, XML, SOAP, web services, search engine optimization or registration, linking, shell, or any 3rd party private or commercial software tool or technology unless otherwise arranged as part of the Order.
- ACCEPTABLE USE.
Customer agrees that any material published to the Precis network will not violate or infringe any copyright, trademark, patent, statutory common law or proprietary rights of others, or contain anything libelous, harmful, or abusive. Customer agrees to indemnify and hold Precis harmless for any claim resulting from the submission of illegal materials. Abusive and unethical materials and uses include, but are not limited to pornography, obscenity, nudity, violations of privacy or copyright, computer virus, online games, or any other harassing and harmful material. Auctions, flash sales, lotteries or other traffic surges that may degrade services will not be tolerated and subject to section C.5.b. of this Agreement. Customer will not share logins with any competitor of Precis and acknowledge that doing so would damage Precis considerably. Customer may not access or use Precis products if a direct competitor of Precis.
- USER ACCOUNTS.
All users will be required to maintain and subscribe to their own user account and login. Logins may be not be shared among users or departments. Violation of the user account policy will result in immediate suspension of suspected logins.
- SERVICE LEVEL AGREEMENT.
- Uptime Guarantee. Precis guarantees to Customer a minimum uptime of 99.9% calculated on a yearly basis. Exceptions from uptime calculations include scheduled maintenance, upstream outages, malicious attacks, Customer user error, or other occurrences covered under the terms of the Agreement. If Precis shall fail to provide minimum uptime to Customer, Customer will receive a credit proportional to downtime of impacted Products on the following invoice.
- Upgrades and Overages. The allotment of resources for Services is meant to serve as a guideline for account usage. Use of additional resources will not be prevented as to not deny service to any account. In the case of usage overages, Precis shall bill Customer for additional resources used on the following invoice. Precis reserves the right to suspend or upgrade Customer’s account in case of excessive usage, traffic, or computation Precis will advise Customer if and when service level agreement is exceeded for the purpose of negotiating a new service level.
- PRIVACY AND SECURITY.
Policies related privacy and security can be found at http://ebizplatform2020.azurewebsites.net and may be amended as needed to comply with current regulations.