CASTLE COMPUTER TECHNOLOGIES, LLC
Terms and Conditions
1. Services. Subject to the terms and conditions herein, Castle Computer Technologies, LLC (“Service Provider”) hereby agrees to provide or has provided to Customer the services set forth in the accompanying invoice at the stated price (the “Services”).
1.01 Contracted services: Service Provider shall provide or has provided to Customer the non-exclusive services set forth in the accompanying invoice at the stated price (the “Services”). Service Provider will determine the method, details, location, and means of performing the Services. The Parties acknowledge and agree that the Services may be modified and/or expanded from time to time upon a mutual agreement.
1.03 Additional Services: Service Provider may also be available for additional services outside the scope of this accompanying invoice, per Customer’s request, on an as-agreed basis. Prior to performing Additional Services, the Service Provider will notify the Customer of additional fees for the performance of the Additional Services. Such charges shall be in addition to all other amounts due under this accompanying invoice.
2. Fees and Expenses.
2.01 Fees. As full consideration for the provision of the Services, Customer shall pay Service Provider fees as per the accompanying invoice. Fees may be adjusted due to increases in goods and services costs at the sole discretion of the Service Provider. Customer shall be notified of any such fee adjustments in writing and a new invoice provided.
2.02 Expenses. In addition to the Fees, Customer agrees to reimburse Service Provider for all of Service Provider’s travel and other expenses reasonably incurred by Service Provider in connection with its performance of the Services including, but not limited to travel, equipment provided by Service Provider, third-party licensing fees, third party expenses, any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity, and/or for such other expenses Service Provider deems reasonable and necessary to incur.
2.03 Payment. Payments are to be made in U.S funds. Payment is due immediately upon receipt of an invoice. Any payments not made within thirty (30) days of the date of invoice may be subject to a late payment charge. Service Provider reserves the right to place a service charge on past due accounts at the highest rate permitted by law. Service Provider further reserves the right to collect all monies owed from Customer by any means we deem necessary as permitted by law.
Additional Services and/or Expenses incurred will be issued under a separate invoice and will be due immediately upon receipt.
The method of payment by the Customer to the Service provider shall be by:
Check sent to the address on the invoice
Credit card payment through Service Provider’s Payment Processor.
2.04 Compliance with Laws; Permits and Licenses. Customer agrees, at its own expense, to operate in full compliance with all governmental laws, regulations, and requirements applicable to the duties conducted hereunder. It shall be the responsibility of the Customer to pay for any necessary licenses, permits, insurance and approvals as may be necessary for the performance of the Services, unless otherwise specified in writing and agreed to by the Service Provider.
2.05 Tax Statement: All charges payable are exclusive of taxes, surcharges, or other amounts assessed by state or federal governments. Taxes imposed upon or required to be paid by Customer shall be the sole and exclusive responsibility of the Customer.
3. In Person Services: The Service Provider recognizes the importance of performing the Services in a safe and responsible manner to prevent illness or injury to Customers and others. Customer assumes responsibility for implementing and monitoring all government mandated, industry standard, or reasonably expected Health and Safety precautions related to the receipt of the Services. As such, the Service Provider shall not be liable nor responsible for any illness or injury of the Customer, Candidates, or others in the performance of the Services.
4. Cooperation Of Customer. Customer understands and acknowledges that the obligations of Service Provider to perform Services are dependent upon, among other things, the accuracy of the assumptions and representations made by Customer, the timeliness of Customer management decisions, and the performance of Customer personnel in meeting their obligations and implementing Service Provider’s guidance. For purposes of this section, Customer includes Customer’s employees, consultants, contractors, agents, and representatives.
Customer agrees to comply with all reasonable requests of Service Provider and shall provide Service Provider with access to all equipment, documents, information, and facilities as may be reasonably necessary for the performance of the Services.
For Services in which Service Provider requires access to Customer’s computer systems, including but not limited to operating systems, applications, servers, network and network equipment, circuits, physical access to data centers and wiring closets, or other information technology components (“IT Environment”), Customer will provide Service Provider with proper access to its IT Environment, including the use of appropriately configured workstations and printers as necessary. Customer shall be responsible for all costs and expenses for any associated third-party consents, approvals, and authorizations necessary to allow Service Provider to access, operate, and use Customer’s IT Environment.
It is understood by the parties that Service Provider is responsible for providing ideas, recommendations, and certain Deliverables to Customer, and Customer including Customer’s employees, consultants, contractors, agents, and representatives shall be solely responsible for how Customer subsequently uses those ideas, recommendations, and Deliverables.
5. Warranties and Representations
5.01. Warranty. Service Provider does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. Service Provider shall comply with all statutes, ordinances, regulations, and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 5 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. SERVICE PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY SERVICES, PRODUCTS, WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO THE CUSTOMER BY THE SERVICE PROVIDER. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY LIABILITY DUE TO ACTIONS OR INACTIONS OF CUSTOMER INCLUDING CUSTOMER’S EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS AND REPRESENTATIVES. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS RE-PERFORMANCE OF THE SERVICES, OR IF RE-PERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID FOR SUCH NON-CONFORMING SERVICES.
6. Ownership of Work Product. The services and products covered under these terms are not a work-for-hire. The copyright in all deliverables created hereunder for Customer shall belong to the Service Provider. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of the Services hereunder are and shall remain the sole and absolute property of Service Provider, subject to a worldwide, non-exclusive license to Customer for its internal use as intended under these terms, and the Service Provider retains all moral rights therein. Service Provider does not grant Customer any license to any of the Service Provider’s products, which products must be separately licensed.
7.01 Confidential Information. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of or while present at a Party’s facilities; and (iv) all other non-public information provided by the Disclosing Party hereunder. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
7.02 Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, consultants, and representatives who have a need to know such Confidential Information to fulfill the business affairs and transactions between the Parties [and who are under confidentiality obligations no less restrictive as these terms]. The Receiving Party shall always remain responsible for breaches of these terms arising from the acts of its employees, subcontractors, consultants, and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under these terms and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
7.03 Exceptions. Confidential Information does not include information that: (a) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (c) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (d) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (e) is disclosed by Receiving Party with Disclosing Party's prior written approval.
7.04 Required Disclosures. If the Receiving Party is confronted with legal action to disclose Confidential Information received, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
7.05 Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated, or accessed in violation of these terms, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication, and take all necessary steps to prevent any further breach. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such an event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach, in addition to all other remedies available in law or at equity.
7.06 Return of Confidential Information; Survival. Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within 30 days following the expiration or earlier termination of these terms. Notwithstanding any expiration or termination, Receiving Party’s obligations to protect the Confidential Information pursuant to this Section will survive for in perpetuity after the expiration or earlier termination.
Customer agrees to indemnify, defend, and hold the Service Provider and its affiliates and their respective officers, directors, employees, and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses, and costs, including attorney’s fees and court costs, arising out of the Customer’s (i) negligence or willful misconduct or (ii) its material breach of any of the terms herein. The Service Provider, when seeking indemnification shall provide the Customer with prompt written notice of any claim and give complete control of the defense and settlement of the Customer, and shall cooperate with the Customer, its insurance company, and its legal counsel in its defense of such claim(s). For purposes of this section, the acts or omissions of Customer’s employees, consultants, subcontractors, agents, and representatives shall be deemed the acts or omissions of the Customer.
9. Limitation of Liability; Actions.
EXCEPT FOR THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7 OF THESE TERMS AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THESE TERMS, IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTIONS, DAMAGE TO GOODWILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SERVICE PROVIDER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CUSTOMER TO THE SERVICE PROVIDER IN THE ACCOMPANYING INVOICED AMOUNT. THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE TERMS.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
10.01 Term. The applicability of the terms will commence as of the first date of any Services performed and will continue in perpetuity unless earlier terminated as set forth herein.
10.02. Termination for Breach. Either Party may terminate the Services relationship at any time in the event of a breach by the other Party of a material covenant, commitment or obligation that remains uncured after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
10.03 Termination for Bankruptcy, Insolvency or Financial Insecurity. Either Party may terminate the Services immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within than ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. The applicability of the Services Terms shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of these terms pursuant to 11 USCS § 365.
10.04 Obligations upon Termination. Termination for any reason shall not discharge either Party's liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay Service Provider for all Services rendered prior to termination. Upon termination by either party, the Customer shall assume the obligations of any contract or outstanding bill executed by Service Provider for and on behalf of the Customer and responsibility for payment of all unpaid bills.
11. Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including, but not limited to, pandemics, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, civil commotion, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of the associated invoiced services, for so long as such Force Majeure is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence. If performance is delayed over thirty (30) days, the Party not experiencing the force majeure event may terminate the invoiced services or products.
12. Governing Law and Venue. These terms will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of these terms will be brought solely in any state or federal court located in Palm Beach County, Florida. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS.
13. Dispute Resolution. The parties agree to attempt to settle any claim or controversy arising out of these Services terms through consultation and negotiation in good faith and spirit of mutual cooperation. When a dispute arises, the dispute will be submitted in writing to the other party for resolution. If the parties are unable to resolve the dispute within fifteen (15) days, either party may refer the dispute to mediation, the cost of which will be shared equally by the parties, except that each party will pay its own attorney's fees. Within fifteen (15) days after written notice demanding mediation, the parties will choose a mutually acceptable mediator. Neither party will unreasonably withhold consent to the selection of the mediator. If the dispute cannot be resolved through mediation within forty-five (45) days, either party may submit the dispute to a state or federal court of competent jurisdiction in the State of Florida, U.S.A. Use of any dispute resolution procedure will not be construed under the doctrines of laches, waiver, or estoppel to adversely affect the rights of either party. Nothing herein prevents either party from resorting to judicial proceedings if the dispute is with respect to Intellectual Property Rights, or interim relief from a court is necessary to prevent serious and irreparable injury to a party or others.
14. Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of these terms, or any rights under these terms, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
15. Collection Expenses. If Service Provider incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due, Customer agrees to reimburse Service Provider for all such costs, expenses and fees.
16. Assignment. No Third-Party Beneficiaries. Neither Party may assign these terms, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, these terms and accompanying invoice shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third-party beneficiaries to these terms or accompanying invoice.
17. Severability. If any provision or portion of these terms shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
18. Construction. The headings and captions appearing in these terms have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the provisions to which they pertain. These terms shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation.
19. Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
20. Notices. Any notice or other communication required or permitted hereunder shall be given in writing to the other party at the address stated herein or at such other address as shall be given by either party to the other in writing. Such notice shall be deemed to have been given or made when delivered personally, via email, via facsimile or any delivery service having a delivery receipt.
21. Waiver. No waiver of any term or right in these terms shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision thereafter.