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WheelHouse IT Legal

Master Service Agreement

1.1 The specific nature and costs of products and services to be provided by the Company to Customer (each, a “Service” and collectively, “Services”) will be set forth in one or more service attachments (each a “Service Attachment,” and collectively, the “Service Attachments”) attached hereto or subsequently signed by the parties and that reference this Agreement. The terms and conditions set forth below shall apply to the provision and use of the products and Services provided by the Company pursuant to this Agreement or any Service Attachment. For purposes of this Agreement, “products” means any equipment (whether sold, leased or loaned), and services provided by a third party (i.e., software as a service and infra structure as a service, for example “Office 365® by Microsoft”). “Services” means services contracted for other than services included in the definition of “products.”

1.2 Each Service selected by Customer is further subject to the terms and conditions of the corresponding Service Attachment applicable to that Service. The Company will not be obligated to provide any Services other than those Services selected by Customer to be performed pursuant to this Agreement and an applicable

Service Attachment. Any Services not included in this Agreement or in a Service Attachment may be provided to Customer at the sole discretion of the Company, and may be subject to certain fees and expenses. Any Changes to the Services are to be requested by Customer in writing.

2.1 The Company, its employees, consultants, contractors and agents shall not be deemed nor construed to be an employee of Customer and nothing contained herein or in any Service Attachment shall be construed to create a relationship of employer and employee between Customer and the Company, its employees, consultants, contractors and agents. Nothing in this Agreement nor any Service Attachment shall constitute or be construed to create a partnership, joint venture, employer/employee, or agency relationship between Customer and the Company.
2.2 Neither party is an agent of the other and thus has no express or implied right or authority to, and shall not, bind or obligate the other party to any agreement, contract, representation or warranty without expressed written consent of such party.

3.1 Customer agrees to pay the Company’s fees and expenses for Services as set forth in this Agreement and each applicable Service Attachment. All fees, expenses, and applicable taxes for the Services and products provided by the Company will be invoiced to Customer.
3.2 Customer shall pay the amount of each invoice within the time period specified in such invoice, in the applicable Service Attachment, or if no such time is specified, within thirty (30) days of receipt of such invoice
3.3 Provided that Customer does not (a) otherwise pay the amount of such invoice, except such portions contested pursuant to the following clause; or (b) contest in writing an invoice, each within the time period set forth in the invoice for payment, Customer hereby authorizes the Company to charge the credit card to be provided following acceptance of this agreement via Company’s online payment portal the fees, either in arrears or in advance, specified for products and/or Services on any invoice as of the due date, and, if necessary, initiate adjustments for any transactions credited/debited in error so long as this Agreement is in effect. Customer agrees to attempt in good faith to rectify any dispute of charges in any invoice with the Company prior to Customer contesting the charges with its credit card issuer, provided that Customer shall notify the Company in writing prior to taking any action(s) to reject or cancel charges with its credit card issuer. Customer further agrees to update the credit card information as needed and understands and agrees that the Company may assess a penalty of $50 per transaction if the credit card is declined or if any charge is wrongfully disputed or contested by Customer. Customer agrees to update its credit card information promptly to ensure that it is at all times accurate, effective and has sufficient credit to meet Customer’s payment obligations under this Section 3.
3.4 Payments received after the due date specified on the invoice are subject to a 1.5% monthly finance charge, provided that in no case shall any finance charge exceed the maximum amount allowed by law.
3.5 Subject to adjustment as set forth in this Section and Section 3.10 herein, the costs set forth in any pricing schedule are payable per the terms in and for the length of the applicable Service Attachment. Subject to adjustment of the number of hours of Services provided under a Service Attachment as provided under Section 3.10 herein or other variable costs and charges (e.g. storage charges, per user charges, per seat licenses), such costs may increase up to five percent (5%) per year for each year the applicable Service Attachment is in effect. Charges for Services with variable storage, computational usage or other variable resources may automatically increase depending on Customer’s usage. If Customer adds additional users to its account, or if during the course of a Service audit the Company identifies additional users on Customer’s account, Customer’s Service plan will automatically increase to match usage.
3.6 Customer shall reimburse the Company for reasonable documented business expenses incurred by the Company in connection with performance of the Services, including without limitation travel and meal expenses incurred in connection with on-site visits to Customer by the Company.
3.7 Any Services performed at Customer’s request or direction (or by Company in the event of an emergency where such request is not reasonably obtainable) in a given month that are Out of Scope (as defined below) shall cost a specified fee as notified by the Company in writing to Customer prior to the performance thereof, or, in the event no such notice is provided, as follows:
3.7.1 The hourly rate for such Out of Scope Services provided during the Company’s normal business hours shall be $[Z_customQuoteDecimal1].00 (the “Hourly Rate”). The Hourly Rate may change from time to time as determined by the Company.
3.7.2 The hourly rate for Out of Scope Services provided during the Company’s non-business hours (excluding holidays) shall be one and one half (1.5) times the Hourly Rate.
3.7.3 The hourly rate for Out of Scope Services provided during holidays shall be two (2) times the Hourly Rate.
3.7.4 Billing for Out of Scope Services shall be in fifteen (15) minute increments, provided however:
3.7.4.1 If no Service Attachment is then in effect, the minimum time billed for such Services shall be (2) hours for Services provided onsite and one (1) hour for Services provided remotely.
3.7.4.2 If any Service Attachment is then in effect, the minimum time billed for such Services shall be one (1) hour for Services provided onsite and fifteen (15) minutes for Services provided remotely.
3.8 “Out of Scope” shall include, but not be limited to, the following Services:
3.8.1 Services that are not expressly described in any Service Attachment.
3.8.2 Installation or configuration of any application or system not present as of the Effective Date wherein such installation or configuration is not due to a software or hardware failure.
3.8.3 Services on devices that do not meet the Company’s minimum requirements.
3.8.4 Services on devices that exceed the quantity set forth in the applicable Service Attachment.
3.8.5 Problem diagnosis and support that may not be completed because of a problem beyond the Company’s control.
3.8.6 Problem diagnosis and support that may result from:
3.8.6.1 External causes such as accident, abuse, fire, misuse, natural disaster, or problems with electrical power.
3.8.6.2 Modifications made by a 3rd party or Customer without the Company’s prior written authorization.
3.8.6.3 Usage that is not in accordance with product instructions provided by manufacturer, service provider or licensor.
3.8.6.4 Problems caused by using accessories, parts, or components not compatible with the products or Services.
3.8.6.5 Non-compliance with the Company’s instructions for resolving the problem.
3.9 If a Service Attachment states a number of Services hours per month to be provided by the Company, the Company may perform a review at any time to identify the number of hours per month actually provided that are not included in the Service Attachment, and may modify the number of hours in such month, and as a result, the cost per month, accordingly.
3.10 Unless otherwise specified on an invoice, all amounts paid by Customer to the Company under this Agreement and/or any Service Attachment do not include any amount for sales, use or other taxes. All such taxes shall be paid by Customer to the applicable taxing authority, unless the Company is required to collect and/or remit such taxes, in which case Customer shall promptly pay the Company for any such taxes.
3.11 The Company may suspend the Services if Customer’s account is more than 30 days past due. the Company may restore Services upon payment in full of the overdue balance, including all applicable finance and late charges, and may, in its sole discretion, require Customer to pay in advance for future Services. Any suspension in Services will include suspending Customer’s access to the Company’s hosting services, including access to any applications and Customer data stored within the Company’s hosting infrastructure.
Accounts suspended for 30 days or more are subject to termination at the Company’s sole discretion. Suspension of Service shall constitute sufficient and proper notice that Customer’s account is subject to termination 30 days from the date Customer’s account is suspended. Except as otherwise provided in this Agreement or any Service Attachment, the Company shall not have any obligation to maintain or store Customer data if Customer fails to cure any material breach, including non-payment of a past-due invoice.
 
3.12 Company may terminate this Agreement if Customer does not, within ten (10) days of notice from the Company, (a) provide the Company commercially reasonable assurances of amounts as they will become due under this Agreement and each Service Attachment, and (b) within such time (or longer grace period if stated in a Service Attachment) pay all past due amounts. Notwithstanding the foregoing, it shall not be a breach for Customer to fail to pay any amount it claims good-faith dispute with respect to the amount of such payment.
4.1 This Agreement shall become effective as of the Effective Date and shall continue in effect until terminated in accordance with the provisions of this Agreement. The term of each Service Attachment shall be stated therein.
4.2 Either party may terminate this Agreement or any Service Attachment by giving thirty (30) days prior written notice to the other party. In the event of termination, the following will immediately take place:
4.2.1 The Company will stop providing any Services and/or products, and the Company shall invoice Customer (and Customer shall pay) for all Services that have been performed and products that have been provided up to the termination date of any applicable Service Attachment and/or this Agreement. Customer shall pay such invoice within thirty (30) calendar days of the date the invoice was generated.
4.2.2 Upon termination of this Agreement, the Company will stop use of Customer’s name, logos, trademarks and artwork pursuant to Section 6 of this Agreement.
4.2.3 All Service Attachments will terminate upon termination of this Agreement. If the Customer terminated this Agreement under Section 4.2, by Company for non-payment or other material breach, any termination or other fees stated in each Service Attachment, if any, shall apply to the same extent as if the Customer directly terminated that Service Attachment.
5.1 “Confidential Information” means any information or data, whether or not reduced to writing, used by or belonging or relating to the Company or Customer, or any person or entity to whom either the Company or Customer owes a duty of confidentiality, that is not generally known to the industry in which the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality, is or may be engaged, including, without limitation, any and all: (i) trade secrets, proprietary data or information relating to the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality; (ii) inventions, concepts, designs, processes, specifications, schematics, equipment, reaction mechanisms, processing techniques, formulations, chemical compositions, technical information, drawings, diagrams, software (including source code), hardware, control systems, research, test results, plant layout, feasibility studies, procedures or standards, know-how, manuals or patent information; (iii) the identity of or information concerning current or prospective clients, customers, accounts, suppliers, service providers, consultants, licensors, licensees, contractors, subcontractors or other agents or representatives; (iv) financial or sales information, current or planned commercial activities, business strategies, records, marketing plans, or other information relating to the business activities or operations of the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality; (v) any information that should reasonably be considered to be confidential or proprietary; or (vi) any other information that the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality, advises the Company or Customer should be treated as confidential information.
5.2 Notwithstanding the foregoing, Confidential Information does not include information which the receiving party can document:
5.2.1 is known to the receiving party at the time of disclosure other than as a result of the receiving party’s breach of any legal obligation;
5.2.2 has become publicly known and made generally available through no wrongful act of the receiving party;
5.2.3 has been rightfully received by the receiving party from a third party who has the legal right to disclose such information; or
5.2.4 is required to be disclosed pursuant to court order or government authority, whereupon the receiving party shall provide written notice to the disclosing party prior to such disclosure unless prohibited by such court order from providing such written notice.
5.3 Without the disclosing party’s prior written approval, the receiving party shall not communicate, publish or disclose to any person or entity or use (for the receiving party’s own benefit or the benefit of others) any Confidential Information for any purpose whatsoever; provided, however, the receiving party may use the disclosing party’s Confidential Information solely for the purpose and to the extent required in connection with carrying out the receiving party’s duties as contemplated by this Agreement. The receiving party will at all times use and disclose the other party’s Confidential Information using at least the same degree of care that it uses with to protect its own Confidential Information, but in no event less than a reasonable degree of care. The receiving party will return
to the disclosing party all originals and copies of documents and other materials, whether in print or electronic format or otherwise, containing or derived from Confidential Information in the receiving party’s possession or under the receiving party’s control when the obligations of the receiving party no longer require it’s possession thereof, or whenever the disclosing party requests, and
in any event will return all Confidential Information within ten (10) days if this Agreement is terminated for any or no reason and will not retain any copies thereof, other than to the extent required by applicable law or to enforce the terms of this Agreement. If requested by the disclosing party, the receiving party will certify in writing to the disclosing party as to the return or destruction of all Confidential Information. The receiving party acknowledges that it is obligated to protect the Confidential Information from disclosure or use even after termination of this Agreement. Notwithstanding the foregoing, the receiving party shall not be required to return Confidential Information outside of its control or where doing so would be commercially impractical (i.e., backups that include both Confidential and non-Confidential information).
5.4 Notwithstanding the foregoing, the Company may disclose Confidential Information of Customer to officers, directors, employees, agents, attorneys, representatives, and subcontractors (collectively, “Third Parties”) that may be hired by or work with the Company in rendering products or Services for Customer; provided, however, such Third Parties are aware of the Company’s obligations set forth herein; and provided, further, that such Third Parties are subject to restrictions of confidentiality substantially similar to those set forth herein.
5.5 The disclosing party shall retain ownership of all right, title and interest in and to its Confidential Information. Except for the limited right to use the disclosing party’s information as required to perform its obligations under this Agreement and/or any Service Attachment, the receiving party shall not acquire any other right, title or interest in or to the disclosing party’s Confidential Information.
5.6 Non-Solicitation. Customer agrees that during the term of this Agreement and for a period of two (2) years after the termination of this Agreement, Customer will not, either directly or indirectly, separately or in association with others, interfere with, impair, disrupt or damage the Company’s business by hiring, soliciting, encouraging or recruiting for itself or others any of the Company’s (a) current employees, contractors, officers, managers, or agents (“Current Employees”); or (b) any former employees, contractors, officers, managers, or agents who were employed by, engaged to perform Services on behalf of the Company or the Company’s affiliates in the twelve (12) month period immediately prior to the date of such solicitation (“Former Employees”), or causing others to solicit or encourage or recruit any of the Company’s Current Employees or Former Employees to discontinue their employment or otherwise change their relationship with the Company.
5.7 Nondisparagement. Upon termination of this Agreement, the Company and Customer agree that, unless otherwise legally required to do so, they will each at all times thereafter refrain from discussing the circumstances relating to such termination and from disparaging, or describing in a derogatory light, the
performance, capabilities, Services, business practices, or ethics of the other (or of the officers, directors, managers, or members of the other). This provision does not apply to statements made by a party to its, his or her immediate family or attorneys, or to statements made by either party in legal proceedings in conjunction with legal actions to pursue rights and/or remedies under this Agreement.
5.8 Right To Injunction. Each party acknowledges that the other party will suffer immediate and irreparable harm that will not be compensable by damages alone in the event such party repudiates or breaches this Section 5, or threatens or attempts to do so. In the event of any such breach or any threatened or attempted breach, such party agrees that the other party, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, shall be entitled to obtain temporary, preliminary, and permanent injunctions to prevent or restrain any such breach, and the other party shall not be required to post a bond as a condition for the granting of such relief.
5.9 Customer shall ensure, by written agreement with terms substantially similar to Section 5, that each of its direct and indirect affiliates, officers, employees (while employed), contractors, managers and directors are bound by the terms of this Section 5.
6.1 Trademarks. Customer agrees that during the term of this Agreement, the Company may use Customer’s name, logos, trademarks and artwork in marketing material, web sites, trade shows and literature for the purposes of promoting the Company’s own products and Services.
6.2 Work Product. The Company will be the exclusive owner of all right, title and interest in all work product created or developed by the Company, its officers, directors, employees, agents, and subcontractors performed for or on behalf of Customer in connection with this Agreement, in any form or medium, including without limitation all improvements and/or modifications to any software or other items (collectively, “Work Product”). If Customer acquires rights in any such Work Product under applicable law, Customer hereby grants, transfers, and assigns and agrees to grant, transfer and assign to the Company, its successor and assigns, the entire right, title and interest in and to (i) the copyright and all other intellectual property rights in and to such Work Product, (ii) any registrations and copyright or patent applications relating thereto, (iii) any renewals and extensions thereof, (iv) all works based on, derived from or incorporating the Work Product, (v) all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, (vi) all causes of action, either in law or in equity for past, present or future infringement based on copyrights, and (vii) all rights corresponding to each of (i) through (vi) throughout the world and in all or any forms of media. From time to time upon the Company’s request, Customer and/or its personnel shall confirm such assignment by execution and delivery of such assignments, confirmations or assignments, or other written instruments as the Company may request. the Company, its successors and assigns, shall have the right to obtain and hold in its or their own name(s) all copyright registrations and other evidence of rights that may be available for the Work Product.
6.3 The Company Property. During the term of this Agreement, in connection with the performance of the Services or the provision of products pursuant to this Agreement and/or any Service Attachment, the Company may deliver or supply material, including, but not limited to, code, software, supporting documentation, hardware, computers, devices, peripherals, information, communications, text, photographs, images, graphics, sounds or other property (“the Company Property”), to Customer which are owned, licensed, or otherwise maintained by the Company. To the extent necessary to perform the Services and provide the products, Customer hereby consents to the Company’s placing the Company Property in Customer’s premises. Except to the extent set forth in an applicable Service Attachment or otherwise agreed in writing, Customer shall not be charged for this Company Property; however, the Company shall retain all right, title and interest in and to such Company Property. Customer shall not, in whole or in part, directly or indirectly, (a) copy, reverse engineer, reproduce, publish, distribute, modify, or create derivative works from; or (b) otherwise use, alter, or tamper with or attempt to use, alter, or tamper with, the Company Property without the Company’s prior written consent. Customer shall not use the Company Property for the benefit of a third party, or remove any proprietary labels or notices on or incorporated into the Company Property. Within ten (10) business days of termination for any reason or expiration of this Agreement or the applicable Service Attachment for which the Company Property was being used, at Company’s option: (x)(i) the Company shall have the right to enter Customer’s premises where the Company Property is located and remove the Company Property, and (ii) at the Company’s discretion, the Company may offer to sell the Company Property to Customer, and if Customer decides not to purchase the Company Property, the time period for the Company’s right to enter Customer’s premises and remove the Company Property shall be thirty (30) days from the date of the Customer’s decision not to purchase the property; or (y) the Customer shall return the property to the Company at the Customer’s expense and if the Customer does not return the property within the specified time period, Customer shall pay Company the cost to replace the property with the then-current model/version of such property within two (2) weeks of receiving an invoice from the Company for the cost of such replacement. The Company retains all rights to the Company Property not expressly granted to Customer herein.
6.4 License to the Work Product and the Company Property. During the term of the applicable Service Attachment, the Company hereby grants Customer a limited, non- transferable, non-exclusive, revocable license to use and maintain the Work Product and the Company Property to the extent required for the use of the products and Services provided by the Company hereunder.
6.5 License to Customer Network. Customer hereby grants the Company a non- exclusive license to access Customer’s computer network remotely (via the Internet or a virtual private network) or on Customer’s premises to the extent required to provide the Services and to install and maintain the products pursuant to this Agreement and the Service Attachments.
6.6 Publicity and Demonstration Rights of Customer’s Website. If Customer purchases any web site hosting Services from the Company and retains any rights in its web site, Customer hereby expressly grants, assigns and otherwise transfers non-exclusively and during the term to the Company, its successors and its assigns, the right to publicly perform or to publicly display the web site only for the purposes of performing the Services and for the Company’s marketing and advertising.
6.7 Customer’s Retained Rights with Respect to any Website Hosted or Designed by the Company.
6.7.1 Works Created by Customer. Customer shall be deemed the author and owner of: Customer’s domain name and its attendant intellectual property rights; Customer’s uniform resource locator, if any, and its attendant intellectual property rights; and any graphics, data or content provided by Customer that are incorporated into Customer’s website or any work embodying or derived from any portion of the website.
6.7.2 Reproduction, Derivation, Performance and Display Rights of the Company’s Works. The Company expressly grants, assigns and otherwise transfers and agrees to grant, assign and transfer to Customer the right to reproduce, make derivative works, publicly perform or publicly display any website designed for or modified for Customer by the Company. To the extent that any intellectual property right of the Company exists in or with Customer’s website, including, without limitation, the Work Product, Customer shall not sublicense the website without prior the written express permission of the Company.
6.8 Ownership of Data. Customer retains sole ownership of all content and Data that Customer imports into, stores within or uses in conjunction with the products and Services and stores and/or backs up using the Services. For purposes of this subsection, the individual person executing this Agreement on behalf of Customer shall be considered the “Customer” for purposes of the ownership of Data and making decisions regarding the treatment of Customer’s Data, unless that individual provides the Company with written authorization designating a different individual person as the representative of Customer for purposes of ownership of Customer’s data and making decisions regarding the treatment of Customer’s data. If the individual person who executed this Agreement is no longer associated with Customer, and a successor representative has not been designated as set forth above, or otherwise cannot be identified by the Company after reasonable inquiry, Customer agrees that the Company may, in the Company’s sole discretion, determine which individual shall be considered the representative of Customer for purposes of the ownership of Customer’s data and making decisions regarding the treatment of Customer’s data.
6.9 Ownership Retention of Intellectual Property Rights. Except for the licenses expressly granted pursuant to this Agreement, no party shall obtain any other right, title or interest in or to the intellectual property rights of the other party. Each party expressly reserves such rights.
6.10 Customer’s use of a product or Service, including but not limited to the use of software, software embedded in equipment, and cloud services provided and/or licensed from third parties to Customer directly or through the Company subject to the standard terms and conditions and licenses of such third parties , and Customer hereby accepts such standard terms, including applicable Microsoft terms and conditions, which may be found at the following link: Microsoft Licensing Terms and Conditions (http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=31)
7.1 BACKGROUND. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN THE USE OF COMPUTERS, NETWORKS AND INTERNET CONNECTIVITY, THAT COULD RESULT IN THE LOSS OF CUSTOMER’S INFORMATION SECURITY, PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. CUSTOMER FURTHER ACKNOWLEDGES THAT NO ACTION CAN BE TAKEN TO ABSOLUTELY PROTECT CUSTOMER FROM SUCH RISKS. CONSEQUENTLY, CUSTOMER AGREES TO EACH OF THE PROVISIONS OF THIS SECTION 7.
7.2 LIMITATATION ON WARANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN ANY SERVICE ATTACHMENT, COMPANY IS PROVIDING THE PRODUCTS AND SERVICES “AS IS” AND THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON- INFRINGEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE COMPANY MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) CUSTOMER’S USE OF THE SERVICES OR PRODUCTS WILL BE TIMELY, UNINTERRUPTED, VIRUS OR ERROR-FREE; OR (C) ANY DEFECTS OR ERRORS IN THE SERVICES OR PRODUCTS WILL BE CORRECTED.
7.3 LIMITATION ON LIABILITY.
(A) EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY’S LIABILITY UNDER OR RELATED TO THIS AGREEMENT OR ANY SERVICE ATTACHMENT, WHETHER FOR BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF (I) TEN THOUSAND DOLLARS OR (II) THE AMOUNT PAID BY CUSTOMER (EXCLUDING ANY APPLICABLE TERMINATION CHARGES) TO THE COMPANY FOR THE PARTICULAR SERVICE GIVING RISE TO SUCH LIABILITY THREE (3) MONTHS PRIOR TO THE DATE OF THE EVENT THAT RESULTED IN THE LIABILITY. (B) OTHER THAN TO THE EXTENT SUCH DAMAGES ARE CAUSED BY THE COMPANY’S FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS OR PUNITIVE DAMAGES OF ANY KIND , OR FOR LOSS OF OR CORRUPTION OF DATA, LOSS OF USE, REVENUES, PROFITS, GOODWILL, BARGAIN, OPPORTUNITIES OR ANTICIPATED SAVINGS, WHETHER ARISING FROM BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER TORT, IN EQUITY OR UNDER ANY INDEMNITY, WARANTY OR OTHERWISE, OR OTHERWISE (COLLECTIVELY, “DAMAGES”), EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (C) IN NO EVENT SHALL COMPANY HAVE LIABILITY TO CUSTOMER FOR DAMAGES: (I) WHERE CUSTOMER, AFTER BEING GENERALLY INFORMED OF THE RISKS OF ACTION(S) OR INACTION(S) (INCLUDING BY WAY OF EXAMPLE RECOMMENDED SERVICES, POLICIES AND PROCEDURES AND TRAINING), PERMITS OR INSTRUCTS COMPANY TO ENGAGE IN SUCH ACTIONS OR INACTIONS, AND SUCH ACTIONS OR INACTIONS CONTRIBUTE TO THE DAMAGES; (III) WHERE ACTIONS OR INACTIONS BY ANY PERSON ON BEHALF OF CUSTOMER OTHER THAN THE COMPANY ARE CONTRARY TO RECOMMENDATIONS OR INSTRUCTIONS FROM COMPANY TO THE CUSTOMER AND CONTRIBUTE TO THE DAMAGES; AND (IV) COMPANY SUBSTANTIALLY COMPLIED WITH THE CUSTOMER’S WRITTEN POLICIES AND PROCEDURES APPLICABLE TO THE SERVICES, WHERE CUSTOMER HAS DISCLOSED TO COMPANY SUCH POLICIES AND PROCEDURES (AND TIMELY DISCLOSED ANY UPDATES TO THEM), AND COMPANY HAS AGREED IN WRITING TO PROVIDE THE SERVICES CONSISTENT WITH SUCH POLICIES AND PROCEDURES AND UPDATES. (D) FOR PURPOSES OF THIS SECTION 7, “COMPANY” MEANS THE COMPANY AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, MANAGERS, MEMBERS, AGENTS, EMPLOYEES AND ASSIGNS.
7.4 In the event of a claim or allegation against Customer of infringement or misappropriation of a third party copyright or trade secret, or of a U.S. patent arising from a product or Services provided by Company, the Company will, at its sole option and expense, either procure for Customer the ability to continue using the Services or products provided by the Company, or alternatively, the Company may supply to Customer a substantially equivalent version of the Services or products that is non-infringing. If neither such option is available to the Company on commercially reasonable terms, then the Company may terminate any part this Agreement or applicable Service Attachment to the extent necessary to avoid such infringement or terminate this entire Agreement.
If, pursuant to the preceding sentence, the Company terminates this Agreement, Customer shall not be charged any fees associated with such terminated Service or product from the date such Service or product was unavailable.
7.5 Notwithstanding anything to the contrary herein, the Company will not be obligated to indemnify, defend or settle and will not be liable for any costs relating to any claim or allegation for infringement or misappropriation of a third party trademark, copyright or trade secret or U.S. patent resulting from: (i) the Company’s compliance with Customer’s specifications or instructions; (ii) modification or customization of any part of the products or Services by a party other than the Company; or (iii) the use of the Services or product provided by the Company in combination with any data, content, software, product or service not expressly approved by the Company and where the infringement would not have occurred but for such combination.
7.6 Customer agrees to indemnify, defend and hold harmless the Company and its affiliates, subsidiaries, directors, officers, managers, members, agents, employees and assigns from and against any third party allegations, claims, demands, suits, proceedings, liabilities, judgments, awards, losses, damages, costs or expenses (including reasonable legal fees) arising out of or relating to: (i) the breach by Customer of any representation, covenant or warranty contained herein; (ii) violation(s) of law by Customer, or any third party arising out of or relating to Customer’s or such third party’s actions; (iii) any service performed or product provided by the Company at Customer’s direction or instruction; or (iv) improper or unauthorized use(s) of any Service or product provided by the Company hereunder, including, but not limited to, spamming or transmitting junk mail, distribution lists or chain letters.
8.1 The Company shall perform Services set forth in any Service Attachment for Customer in a workmanlike and professional manner. If at any time during the term of the applicable Service Attachment Customer reasonably determines the Company is not achieving the foregoing level of service, Customer may call a meeting (“Non-Performance Meeting”) to be scheduled within ten (10) business days of the request for such a meeting.
8.2 In a Non-Performance Meeting, Customer will provide a written list of the specific instances and circumstances surrounding the Company’s failures to perform the Services in a workmanlike and professional manner (this may include specific tasks, time to respond or repair, or professionalism), and Customer shall provide a written detail and measure of Customer’s expectations in these areas (the “Customer Expectations”).
8.3 Customer and the Company shall discuss Customer Expectations to obtain a mutually agreeable resolution. However, such a resolution shall not be required when the Services are being provided in a workmanlike and professional manner in accordance with industry standards.
8.4 If applicable, Customer and the Company shall agree upon a mutually acceptable time period for the resolution to be implemented, which shall be a commercially reasonable time to accomplish such resolution under the then-circumstances. At the end of this time period, both parties will have a second meeting to discuss the resolution.
8.5 After the mutually agreed upon time period, if the Company has not cured all the deficiencies stated in the agreed resolution, such that and the Services applicable to the deficiencies are not being provided in a commercially reasonable manner in accordance with industry standards, Customer may terminate the applicable Service Attachment by written notice delivered during the second meeting, or within thirty (30) days after the second meeting. Additionally, if such written notice identifies un-cured, material deficiencies that are a material breach of the applicable Service Attachment, then Customer shall not be obligated to pay an early termination fee, if any, that otherwise would be due for such terminated Service Attachment.
8.6 If any Service Attachment is terminated pursuant to Section 8.5 herein, Customer shall pay for any and all Services under that Service Attachment provided by the Company in accordance with one of the following:
8.6.1 If Customer chooses to terminate Services provided at the conclusion of the second meeting, the Company will immediately stop all work being performed under the applicable Service Attachment, and Customer will be financially liable for monthly charges through the date of termination for that Service Attachment. Charges for any partial month will be prorated.
8.6.2 If Customer chooses to continue using the Company’s Services for the terminated Service Attachment until Customer retains a replacement Services provider, Customer will choose a service termination date for that Service Attachment. In this scenario, the Company will continue to provide Services pursuant to the applicable Service Attachment, and Customer will continue to be obligated to pay for all such Services in accordance with the Service Attachment until the date of actual service termination.
9.1 The Company is authorized to answer questions from and provide technical support relating to the Services provided under any Service Attachment to the individual executing this Agreement on behalf of the Company and such other users specified by Customer to the Company in writing (including email) from time to time (the “Authorized Users”).
9.2 Customer may change or substitute any or all of the Authorized Users for specific Services by written notice to the Company.
10.1 The Company Representations and Warranties to Customer. The Company represents and warrants to Customer that:
10.1.1 the Company is duly organized, validly existing and in good standing under the laws of the State of Florida, and has all necessary corporate powers to own its properties and carry on its business as now owned and operated by it; and
10.1.2 neither the execution nor delivery of this Agreement, and/or the other instruments and documents delivered by the Company in connection with this Agreement and all Service Attachments, nor the consummation of the transactions contemplated in this Agreement and all Service Attachments, will result in or constitute a violation any contract or agreement to which the Company is a party or of the Company’s articles of organization; and
10.1.3 the Company has the authority to execute, deliver and perform its obligations under this Agreement and all Service Attachments.
10.2 Customer’s Representations and Warranties to the Company. Customer represents and warrants to the Company that:
10.2.1 Customer is duly organized, validly existing and in good standing under the laws of the state of its incorporation of formation, and has all necessary corporate powers to own its properties and carry on its business as now owned and operated by it; and
10.2.2 neither the execution nor delivery of this Agreement and all Service Attachments, and/or the other instruments and documents delivered by Customer in connection with this Agreement and all Service Attachments, nor the consummation of the transactions contemplated in this Agreement and all Service Attachments, will result in or constitute a violation of any provision of applicable law, any contract or agreement to which Customer is a party or of Customer’s formation documents; and
10.2.3 Customer has the authority to execute, deliver and perform its obligations under this Agreement and all Service Attachments; and
10.2.4 Customer either owns or has acquired and shall maintain throughout the term of this Agreement, valid licenses to all components of its computer network, including, without limitation, all third party computer software programs; and
10.2.5 None of the documentation or content provided to the Company pursuant to this Agreement or any Service Attachments infringe, misappropriate or otherwise violate the intellectual property rights of any third party; and
10.2.6 Customer and its employees, agents and third party users of its network shall not: (i) use the network in any way for spamming, chain letters, junk mail or distribution lists; (ii) transmit through the network any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind; (iii) use the network for unlawful purposes, in violation of applicable laws including the laws of copyright, trademark, obscenity, and defamation and the laws concerning transmission of any customer information (whether financial or otherwise); (iv) seek to compromise the security of the network by intentionally introducing viruses, tampering with security mechanisms, or other harmful means; (v) violate the rights of any person through the transmission, storage, and display of personally identifiable information; or (vi) knowingly create large bandwidth-consuming transactions or put an unusually large load on the network or the Company’s networks (including, without limitation, those of its other customers).
11.1 Entire Agreement. This Agreement and any Service Attachments hereto comprise the entire agreement and understanding of the parties, as of the Effective Date hereof, and supersedes all prior oral or written agreements, understandings, proposals or arrangements relating to the subject matter of this Agreement. To the extent this Agreement is an amendment, restatement or otherwise supersedes an existing agreement between the Customer and Company (an “Original Agreement”), then such Original Agreement shall be superseded and replaced as of the Effective Date hereof, and the rights of the parties with respect to all matters whether arising under the Original Agreement or this Agreement shall be governed exclusively by this Agreement.
11.2 Waivers. The failure or delay of any party at any time to require performance by another party of any provision of this Agreement hereto, even if known, shall not affect the right of such party to require performance of that provision or to exercise any right, power or remedy hereunder, and any waiver by any party of any breach of any provision of this Agreement should not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or the provision itself, or a waiver of any right, power or remedy under this Agreement. No notice to or demand on any party in any case shall, of itself, entitle such party to any other or further notice or demand in similar or other circumstances.
11.3 Modifications. No modification of any term of this Agreement or any Service Attachment shall be valid unless in writing signed by each party.
11.4 Severability. If any provision of this Agreement or Service Attachment shall be held by a court of competent jurisdiction to be contrary to, prohibited by, or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited, or invalid, but the remaining provisions of th Agreement and any Service Attachment(s) shall not be invalidated thereby and shall remain in full force and effect so far as possible.
11.5 Force Majeure. Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement (other than the obligations set forth in Sections 3 and 5) if such failure is caused by acts of God, war, terrorist activities, strikes, revolutions, fire, earthquake or other casualty, lack or failure of transportation, water or electrical facilities, changes in laws or governmental regulations or any other causes that are beyond the reasonable control of such party (collectively, a “Force Majeure”).
11.6 Assignment. Customer shall not have the right to assign its rights and obligations under this Agreement or any Service Attachment without the Company’s prior written consent, not to be unreasonably withheld. The Company may assign its rights and obligations under this Agreement or any Service Attachment. This Agreement and any Service Attachment shall inure to the benefit of and be binding upon each party’s assigns, if applicable. Any attempted assignment in violation of this Agreement is void.
11.7 Governing Law. This Agreement and any Service Attachment are governed by the laws of the State of Florida without reference to conflict of law principles. Subject to Section 11.13, all disputes arising out of this Agreement or any Service Attachment shall be subject to the exclusive jurisdiction of the state and federal courts located in Broward County, Florida and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, a party’s right to obtain injunctive relief may be sought in any court of competent jurisdiction.
11.8 Resolution of Conflict. In the event of any inconsistency or conflict between the terms and provisions of this Agreement and the terms and provisions of any Service Attachment, the terms and provisions of the Service Attachment shall control.
11.9 Headings. The titles, captions, and headings contained in this Agreement or any Service Attachment are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement or any Service Attachment, respectively.
11.10 Singular and Plural Usages. Whenever used in this Agreement or any Service Attachment, the singular number includes the plural, the plural number includes the singular and the use of any gender includes all genders.
11.11 No Construction Against Draftsman. This Agreement and any Service Attachment are the product of negotiations between the parties hereto and the Company and Customer expressly acknowledge and agree that this Agreement and each Service Attachment shall not be deemed prepared or drafted by one party or another, or its attorneys. the Company and Customer agree that any rules of construction relating to interpretation against the drafter of an agreement shall not apply to this Agreement or any Service Attachment and are expressly waived.
11.12 Survival. The provisions of Sections 2, 4.2, 5, 6, 7, 8.6, and 11 shall survive the termination of this Agreement and/or Service Attachments for any reason.
11.13 Agreement to Arbitrate. To the fullest extent permitted by law, Customer and the Company agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and/or any Service Attachment, and any disputes upon termination thereof, excluding a party’s right to obtain injunctive relief pursuant to Section 5.8 above, which may be sought in any court of competent jurisdiction. The arbitration will be conducted in Broward County, Florida by a single neutral arbitrator and in accordance with the then current rules for resolution of “Commercial Arbitration Rules” of the American Arbitration Association (“AAA”). The parties are entitled to representation by an attorney or other representative of their choosing. The arbitrator shall have the power to enter any award that could be entered by a judge of the trial courts of the State of Florida, and only such power, and shall follow the applicable state and/or federal law. In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. Each party shall bear one half the cost of the arbitration filing and hearing fees, and the cost of the arbitrator, subject to Section 11.14 below.
11.14 Attorneys’ Fees. The prevailing party in any action or arbitration to enforce its rights under this Agreement and/or any Service Attachment shall be entitled to recover from the other party its reasonable attorneys’ fees, court costs, sales and use taxes and all reasonable expenses even if not taxable as court costs (including, without limitation, all such fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy and post judgment proceedings), in addition to any other relief to which such party may be entitled, provided, however, that if complete liability is not assessed against only one party, the parties shall share the total costs in proportion to their respective amounts of liability so determined. Attorneys’ fees shall include, without limitation, paralegal fees, investigative fees, administrative costs, sales and use taxes and all other charges billed by the attorney to the prevailing party (including any fees and costs associated with collecting such amounts).
11.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Confirmation of execution by electronic transmission (such as a facsimile signature page or emailed PDF) shall be binding upon any party so confirming.
11.16 Notice. All notices, requests, consents, and other communications required or permitted under this Agreement or any Service Attachment shall be in writing and shall be (as elected by the party giving such notice) hand delivered by messenger or courier service, electronically transmitted or mailed by first class mail (postage prepaid) addressed to:
if to Customer:
To the address set forth above.
WheelHouse IT 
2890 West State Road 84 Suite 108
Fort Lauderdale, FL 33312
516.536.4899 (Fax)
or such other address as any party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered (a) on the date delivered if by hand delivery or by messenger or courier service; (b) upon confirmation of transmission, if by Electronic Transmission; and (c) five (5) business days after deposit with the United States Post Office, if mailed via first class mail. A notice deemed delivered on a non-business day shall be deemed delivered on the next business day. For purposes of this Agreement, “business day” means weekdays, other than Federal and State of Florida holidays.

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