This SYSTEMS SERVICES AND SUPPORT INCORPORATED AGREEMENT AND TERMS (the “Agreement”), is made and entered into upon the acceptance of the Statement of Work between Borked PC, LLC., a Pennsylvania company, which has its principal place of business located in Northampton County, Pennsylvania (hereinafter referred to as “Borked PC”), and the client requesting service. (referred to as the “Client”).
WHEREAS, Borked PC is engaged in the business of providing computer networking services, system support and maintenance services and computer consulting services, and the Client desires to retain the services of Borked PC pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties as hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Scope of Services. Borked PC shall provide professional hosting services, systems support and maintenance services and computer consulting as set forth in the Statements of Work attached hereto as Schedules, and incorporated herein by reference, and any amendments or additions thereto which may be executed from time-to-time by both parties (collectively, the "Services"). Each Statement of Work that is executed by the parties shall automatically be deemed a part of, and governed by the terms of, this Agreement. In the event of a conflict between the language of this Agreement and any Statement of Work regarding the description of services, payment schedule or contact person, the language of the Statement of Work shall control, but only with respect to that particular Statement of Work. Borked PC agrees to perform all Services in accordance with the description(s) in the Statement of Work.
- Payment. Unless otherwise stated in a Statement of Work or separate Credit Agreement, the Client agrees to pay each invoice received from Borked PC within ten (10) calendar days from the date Client receives the invoice. All monetary amounts not paid when due hereunder shall bear interest on the unpaid invoice amount(s) until and including the date payment is received, at the lower of either 5% per month or the maximum allowable rate of interest permitted by applicable law.
- Term. This Agreement shall commence upon the date of the acceptance of the Statement of Work and shall continue until terminated as provided in Paragraph 8 hereinbelow.
- Authorized Contact Person. Client shall designate one or more authorized contact person(s) (each, an "Authorized Contact") with whom Borked PC will conduct Service-related communications. Such Authorized Contact shall be mutual upon the Statement of Work. Each Authorized Contact shall be a point of contact for Borked PC. If during the Term of this Agreement, Client wishes to add or remove an Authorized Contact, or modify an Authorized Contact's information or authority, Client must notify Borked PC in writing of the change(s) including (in the event of the addition of an Authorized Contact) the Authorized Contact's name, address, email address and telephone number.
- Access to Premises. To the extent that Services are performed at a Client location ("Premises"), the Client hereby grants to Borked PC access to the Premises and the right of ingress and egress over the Premises. To the extent that Services are provided to Client on property other than the Premises, it shall be Client's responsibility to secure, at Client's own cost, prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permission necessary for Borked PC to provide Services at such location(s). Client shall provide Borked PC with any passwords or keys (virtual or otherwise) that Borked PC requires in order to provide the Services to Client. Borked PC shall not be liable for delay in performance or nonperformance of any term or condition of this Agreement directly or indirectly resulting from Client's denial to Borked PC of full and free access to Client's systems and components thereof, or Client's denial to Borked PC of full and free access to Client's personnel or Premises pursuant to this Agreement.
- Warranties; Limitations of Liability.
- Borked PC warrants that the Services (i) shall be performed by qualified personnel in a professional and workmanlike manner, (ii) shall be performed in accordance with the Statement of Work and the terms of this Agreement, which are incorporated into the Statement of Work; (iii) shall be performed in compliance with any applicable commercial standards generally observed in Borked PC’s industry, and (iv) shall be free from defects in workmanship for a period of ninety (90) days. Client agrees to promptly notify Borked PC of any deficiencies in performance of Services hereunder and to take all reasonable steps to mitigate the impact of such deficiencies. Borked PC agrees to promptly take any and all measures required to satisfy its warranty obligations to correct any faults or defects in workmanship, without any additional cost to the Client.
- Any third party products provided to Client pursuant to this Agreement, including but not limited to third party hardware, software, peripherals and accessories (collectively, "Third Party Products") shall be provided to Client "as is". Borked PC shall use reasonable efforts to assign all warranties (if any) for the Third Party Products to Client, but will have no liability whatsoever for such third party products. All Third Party Products are provided WITHOUT ANY WARRANTY WHATSOEVER as between Borked PC and Client, and Borked PC shall not be held liable as an insurer or guarantor of the performance or quality of Third Party Products.
- In no event shall Borked PC be liable for any special, incidental, indirect, exemplary, or consequential damages, or for lost revenue, loss of business, loss of profits or other financial loss of the Client arising out of or in connection with this Agreement, any Statement of Work(s) or any Services performed or parts or equipment supplied hereunder, any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by delay in providing Services under this Agreement or any Statement(s) of Work even if Borked PC has been advised of the possibility of such damages; provided, however that if insurance proceeds are available for such damages under the policies described in Paragraph 7 hereinbelow, then such proceeds shall be allocated by Borked PC to pay any such damages. Borked PC’s aggregate liability to the Client for damages from any and all causes whatsoever and regardless of the form of action, whether in contract, tort or negligence, shall be limited to the higher of (i) the amount of fees paid by the Client to Borked PC for Services during the three (3) months immediately prior to the date on which the cause of action accrued, and (ii) the amount of insurance proceeds available to Borked PC to pay such damages under the policies described in Paragraph 7 hereinbelow. The parties agree that the costs of hardware and/or software (if any) provided to Client under this Agreement shall not be included in the calculation of the limitation of damages described in the preceding sentence.
- Borked PC shall have no responsibility or liability for any product failure or damage to or defects in any hardware or software provided or installed by Borked PC which is caused by or related to any of the following:
- environments or conditions that in the reasonable judgment of Borked PC are unsuitable for the product, system or application;
- any alteration, modification, repair or service to a product or system which is performed by anyone other than a representative of Borked PC;
- accident, negligence or vandalism;
- improper use as reasonably determined by Borked PC;
- improper maintenance as reasonably determined by Borked PC;
- casualty, such as fire, flood or other weather related event; or
- electrical failure.
- Insurance. Borked PC and the Client shall each maintain all insurance reasonably required in connection with this Agreement or any Statement of Work, including but not limited to, workers compensation and general liability insurance.
- For Cause. If either party breaches or violates any term or provision of this Incorporated Agreement, the non-breaching party shall first provide written notice describing the breach or violation and allow the party in breach fifteen (15) days to cure such breach. If the breaching party has not cured the breach in its performance by the end of the cure period to the non-breaching party's satisfaction as reasonably determined by it, then non-breaching party may terminate this Incorporated Agreement for “Cause” after the expiration of the cure period.
- Transition. In the event this Agreement is terminated as set forth herein, all Client data held by Borked PC shall be returned to the Client in a commercially reasonable manner and time frame, not to exceed fifteen (15) calendar days following the date of request of the return of such data by Client. The data shall be returned in a comma separated value (i.e., CSV) format, unless another industry-standard format is mutually agreed upon by the parties. In the event that Client requests Borked PC’s assistance to transition to a new service provider, Borked PC shall do so provided that (i) all fees due and owing to Borked PC under this Agreement are paid to Borked PC in full prior to Borked PC providing its assistance to Client, and (ii) Client agrees to pay Borked PC its then-current hourly rate for such assistance, with upfront amounts to be paid to Borked PC as agreed upon between the parties. Borked PC shall have no obligation to store or maintain any Client data in Borked PC’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. Borked PC shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Borked PC’s deletion of Client data beyond the time frames described in this Section.
- Copyrights and Other Intellectual Property. Each party (a “Creating Party”) owns and retains all intellectual property rights in and to all of the Creating Party’s works of authorship, including but not limited to all plans, software or software modification developed by the Creating Party, and all modules derived or created from such materials (collectively, “Creating Party’s IP”). The Creating Party’s IP may not be distributed or sold in any form or manner without the express written consent of the Creating Party. During the term of this Agreement, Client may use and modify any intellectual property provided to Client by Borked PC pursuant to this Agreement, provided that such modifications (i) do not result in or cause the infringement of any intellectual property rights of any third party, (ii) do not require Client to reverse engineer Borked PC’s intellectual property, and (iii) do not negatively impact the security or integrity of any of Borked PC’s equipment, or the integrity or implementation of the Services. Each party’s limited right to use the other party’s intellectual property as described herein automatically terminates upon the termination of this Agreement.
- Confidentiality. The parties agree that they will not disclose to any third party the terms of this Agreement. Borked PC agrees to hold and maintain all confidential or proprietary information or trade secrets disclosed to Borked PC in the strictest confidences and trust for the sole and exclusive benefit of the Client. Borked PC shall take all action reasonably necessary to protect the confidentiality of all confidential or proprietary information and the secrecy of any and all trade secrets. Borked PC shall not, without the prior written approval of the Client, use for its own benefit, publish, or otherwise disclose to any third party, or permit the use or disclosure of, any confidential or proprietary information or trade secrets for any purpose or reason whatsoever. Borked PC shall restrict access to confidential or proprietary information or trade secrets to those officers, employees, contractors or agents of Borked PC who clearly need such access in order to perform their jobs. Borked PC will advise each person or company to whom it provides such access that the person or company is strictly prohibited from making any use, or otherwise disclosing to others, any confidential or proprietary information or trade secrets, and shall have them execute a confidentiality and non-disclosure agreement with prohibitions similar to this Agreement. All information provided or disclosed to Borked PC shall remain the property of the Client, and upon demand by the Client, all information, including documents, files, records, written notes, memoranda, photographs, computer software, diskettes, and any and all other materials shall be returned to the Client promptly after such demand. Borked PC agrees not to copy any computer software program or any other information or document provided by the Client to Borked PC. The Client shall not use for its own benefit, publish or otherwise disclose to any third party, or permit the use or disclosure of, any confidential or proprietary information or trade secrets of Borked PC for any reason or purpose whatsoever.
- Indemnification. The Client agrees to indemnify, defend, and hold harmless Borked PC, its owners, officers, agents and employees from and against any and all actions, demands, suits, judgments, claims, losses, damages, expenses, including court costs and attorney’s fees, arising out of or related to the provision of Services by Borked PC hereunder. Borked PC agrees to indemnify, defend, save and hold harmless the Client, its owners, officers, agents and employees, from any and all actions, demands, suits, judgments, claims, losses, damages, expenses, including court costs and attorney’s fees arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services; provided however, that such actions, damages or losses are the direct result of Borked PC’s actions and not due to the Client’s fault, in whole or in part.
- Notices. All necessary notices, demands, and requests required or permitted to be given under the provisions of this Agreement shall be deemed duly given if mailed by registered mail, postage prepaid, to the address set forth below, and by email transmission to the email address set forth below.
- If to Borked PC: Attn: Scott Schmutz
52 Broadway, Bangor, PA 18013
- If to Client: At such address and to such Authorized Representative as appears upon the Statement of Work or to such other address as shall be furnished in writing by any party.
- Severability. If any court determines that any provision of this Incorporated Agreement, or any part thereof, is invalid or unenforceable, the remainder of this Agreement shall not thereby be affected and shall be given full effect, without regard to the invalid portions.
- Force Majeure. In the event Borked PC shall be delayed, hindered or prevented from the performance of any act required hereunder, by reason of war, governmental restrictions, civil commotion, shortage of labor or materials, strikes, fire, acts of God, supplier source failure, or any other reason beyond its control, the performance of such act shall be excused for the period of delay, and Borked PC shall not be held liable for any damages caused by any such delay.
- Modification. This Agreement may be modified only if in writing and signed by all parties. No oral modification hereof shall have any effect whatsoever.
- Assignability. The parties agree that they may not assign their respective rights and obligations under this Agreement without the prior written consent of the other party hereto.
- Binding Effect. This Incorporated Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Prior Agreements. This Incorporated Agreement, along with the Statement of Work, contains the entire agreement between the parties hereto regarding the subject matter of this Incorporated Agreement and Statement of Work supersedes any prior agreement between the parties hereto.
- Applicable Law and Forum. This Agreement is formed within, and shall be construed and governed in accordance with the laws of, the State of Pennsylvania, and the appropriate forum for the resolution of any dispute arising out of this Agreement shall be Northampton County, Pennsylvania.
- Dispute Resolution. This Contract and the legal relationship between the parties hereto shall be governed by and construed in accordance with the substantive laws of the state of Pennsylvania. The parties hereto agree to try to resolve, in good faith, any dispute by first trying to work out any dispute informally between themselves. If they are unable to resolve such dispute(s) within ten (10) days of such controversy or dispute arising, then the matter(s) shall be submitted to mediation before a neutral licensed attorney in Pennsylvania with a minimum of ten (10) years’ commercial litigation experience or a retired Pennsylvania bench officer. If the parties hereto are unable to resolve any dispute, claim, or controversy arising out of this contract by way of mediation, the parties agree to submit the matter to arbitration within the state of Pennsylvania, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be a licensed Pennsylvania attorney or retired bench officer with at least ten (10) years’ of commercial litigation experience. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Pennsylvania sitting without a jury. Any lawsuit or other action involving any dispute, claim or controversy relating in any way to this Contract shall be brought only in the appropriate state or federal court in Pennsylvania.
Parties have executed this Incorporated Agreement by virtue of signing the Statement of Work as of the date first set forthin the Statement of Work.