WORKMAGIC, LLC. (“WM”) agrees to provide professional services to client (“Client”) under the following terms and conditions (the “Agreement”). By agreeing to have WM perform professional services for Client, Client agrees to be bound by this Agreement:
WM will provide Customer with a specified number of hours of professional services or a total project costs (“Services”) as set forth in a statement of work signed by Customer and WM (“Statement of Work”) or as otherwise agreed to by WM and Customer. All agreements for services signed by the customer shall be for a period of no less than one year. The parties may choose to define a set of deliverables as described in a Statement of Work. If deliverables are defined by the parties, WM will use its commercially reasonable efforts to provide such deliverables (the “Deliverables”), but will not be obligated to provide Services beyond the hours set forth in the Statement of Work.
Customer agrees to furnish WM with adequate technical assistance, network access, materials, and an environment suitable for WM to be able to perform the Services. Customer further agrees to provide WM with such technology owned or controlled by Customer (the “Licensed Technology”) as WM reasonably requires to perform the Services.
WM shall bear no liability or otherwise be responsible for delays in the provision of Services or any portion thereof occasioned by Customer’s failure to timely complete a Customer task or grant access to the Customer’s systems.
It is understood by the parties that WorkMagic is an independent contractor with respect to Client, and not an employee of Client. Client will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of WorkMagic.
Service Level Agreements are based upon the severity of the issue and will be provided to Client as follows:
- Critical support issues – initial response within fifteen (15) minutes and commencement of work within thirty (30) minutes during work hours.
- Standard support issues – initial response within thirty (30) minutes and commencement of work within forty-five (45) minutes during working hours.
- Clients with critical support issues receive priority over Clients with non-critical (standard) issues.
This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
Under this Agreement, WM is not providing or licensing to Customer any existing or future WM software programs or products. Customer may acquire licenses to such WM products only under the terms of a separate software license agreement.
This Agreement commences on the earlier of the date of the Statement of Work, Purchase Order, or date that WM begins providing Services (“Effective Date”) and, unless terminated earlier pursuant to the terms of this Agreement, shall continue in force until exhaustion of the number of consulting hours identified in the Statement of Work or as otherwise agreed to by WM and Customer.
Customer acknowledges that WM has extensive expertise, experience, and proprietary products and tools in the area of application traffic management and secure remote access, and that WM intends to utilize such expertise, experience, products and tools in providing consulting services and other services in such field to other clients. Subject to WM’s compliance with the confidentiality provisions stated herein, nothing in this Agreement shall restrict or limit WM from performing such development, consulting or other services to any other entity in any industry.
For the Services provided by WM, Customer agrees to pay WM the fees set forth in a quote issued by WM to Customer or as otherwise agreed to by WM and Customer (the “Payment Schedule”) plus any applicable sales or use taxes or other charges. Customer also shall reimburse WM for actual, reasonable travel and out-of-pocket expenses incurred in accordance with WM’s business expense policy.
Unless otherwise set forth in a Statement of Work, WM will invoice on a monthly basis for all Services fees and reimbursable expenses that have accrued. Each invoice shall be due and payable upon receipt, and shall be deemed overdue if they remain unpaid beyond that point. If past due amounts owing from Customer are not paid when due, the unpaid amount shall accrue interest at the rate of 1.0% per month, or at the highest legal interest rate, or $50.00 whichever is greater. WorkMagic reserves the right to suspend services on customer account that is more than two (2) days past due.
WM warrants that the Services provided hereunder will be performed in a professional manner consistent with the quality of WM’s performance of services for similarly situated customers and in accordance with generally accepted industry standards. WM makes no guarantees or assurances that the Services will achieve Customer’s specific goals or provide additional functionality to Customer’s WM appliance.
WM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
This Agreement may be terminated by either party upon ninety (90) days’ prior written notice if the other party materially breaches or fails to perform any material term hereof and the breaching party fails to cure such breach within the 90-day period.
By virtue of this Agreement, each party hereto may disclose to the other party information that is confidential and otherwise proprietary. Unless governed by the terms of an existing or contemporaneously executed non-disclosure agreement (“NDA”), the following paragraphs A and B apply.
Subject to the exceptions listed below, a party’s “Confidential Information” shall be defined as information disclosed by the party to the other party under this Agreement and clearly marked or otherwise clearly designated as “confidential” or information disclosed by one party that is reasonably understood by the other party to be confidential. The Licensed Technology, WM’s proprietary software applications and hardware and the terms and pricing of this Agreement shall automatically be considered Confidential Information under this Agreement. However, a party’s Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party by employees or agents without access to the party’s Confidential Information.
Each party agrees, for the term of this Agreement and three (3) years after its expiration or termination, to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the disclosing party to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take reasonable steps to protect the other party’s Confidential Information and to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent certain Confidential Information is required to be disclosed by the receiving party as a matter of law or by order of a court, provided that the receiving party uses reasonable efforts to provide the disclosing party with prior notice of such obligation to disclose and reasonably assists in obtaining a protective order therefore.
EXCEPT FOR DAMAGES OR LOSSES ARISING FROM INFRINGEMENT OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT NEGLIGENCE, STRICT LIABILITY, LOSS OF DATA, LOSS OF USE, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WM’S TOTAL LIABILITY TO CUSTOMER SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER.
Neither party shall assign, delegate or subcontract any portion of its rights, duties or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided, however, that consent shall not be required in the case of an assignment by either party
to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets. Notwithstanding the foregoing, WM may subcontract any portion of its obligations under this Agreement to a third party so long as WM remains responsible for the performance of such obligations.
If any Deliverables are for use outside the U.S.A., Customer agrees to comply fully with all relevant regulations of the U.S. Department of Commerce and with the U.S. Export Administration Act to assure that such are not exported in violation of United States Law and to comply fully with any other regulations or laws relating to such export or import into another country. Customer shall be responsible for any duties, customs charges or other taxes or fees relating to such export.
WM and Customer each agrees to indemnify, defend and hold the other, its affiliates, and their respective officers, directors, employees, and agents (“Indemnitees”) harmless from and against any and all liabilities, losses, damages, costs, and expenses (“Losses”), and any reasonable attorney’s fees and expenses relating to its defense, resulting from any third party suit or action brought against the Indemnities due to third party claims for death, bodily injury or the damage to or loss of any real or tangible personal property to the extent arising out of the indemnitor’s negligence or willful misconduct in the performance of this Agreement.
Each party agrees that any terms and conditions of any purchase order or other instrument issued by Customer in connection with the Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement shall be of no force or effect. This Agreement may be modified only by a written instrument duly executed by an authorized representative of WM and Customer.
The parties agree that any dispute arising from or related to this Agreement shall be referred to mediation prior to initiation of litigation. Should the dispute not be resolved at mediation, any litigation arising from or related to this Agreement shall be subject to the laws of the State of Florida, and filed in the courts of Miami-Dade County, Florida.