Standard Terms and Conditions for FatLab/Client Relationships
This agreement is made on the date as signed above between FatLab, LLC (from this point referred to as “The Contractor”) and the “Client.”
By accepting this Agreement and subject to the terms and conditions of this Agreement, including those terms and conditions that are set forth on the Web site located at http://www.fatlabwebsupport.com (“Contractor’s Web Site”) that are incorporated herein by reference, Contractor agrees to provide certain technical support services (“Services”) to the Client in connection with the Client’s use of authorized versions of specific software (“Supported Software”) for which Contractor is prepared to provide support.
1. Technical Support Services
Contractor will provide an Internet-based support system (“Support HelpDesk”) generally available seven (7) days a week, twenty-four (24) hours a day on the Contractor’s Web site.
Contractor will establish and maintain an organization and process to provide assistance for the Supported Software to Client. Assistance shall include (i) diagnosis of the deficiencies of the Supported Software, (ii) a resolution of the deficiencies of the Supported Software and (iii) the addition or removal of software features and functions.
Contractor will use its best efforts to cure, as described below, reported and reproducible errors in the Supported Software
Contractor will establish and maintain an organization and process to provide consulting for the implementation or use of the Supported Software to Client.
2.1 Support & Hosting Fees
Client shall pay the fees (“Support Fees” and/or “Project Fees”) as detailed above. Pricing will remain in effect for the duration of the agreement following the date of this agreement. Contractor may change pricing and will notify Client a minimum of 30 days prior to end of initial agreement term.
2.3 Project Fees.
This agreement may include one-time project fees or flat rate pricing for specific deliverables. Such fees are due based on the terms within this agreement and are non-refundable. All project fees not charged to a credit card on file are due upon recipient of official invoice.
All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Client shall be responsible for payment of all such taxes (other than taxes based on Contractor’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Supported Software and performance of the Services hereunder.
3. Client Responsibilities
Client shall always supply support requests in written form using the Support Helpdesk. Client shall provide to Contractor all data that is relevant for resolving each support request. Relevant data may include, but is not limited to, log files, database dumps, program scripts, descriptions of the hardware and software environment, examples of inputs, and expected and actual outputs.
Client acknowledges, if not hosting with FatLab, that it is the sole responsibility of the Client, at all times, including specifically during all service functions performed by Contractor pursuant to this Agreement and undertaken on the Client’s local installation of the Supported Software, to protect and maintain an up-to-date and restorable backup of any and all databases, files, utilities, software and other systems which Contractor’s staff may directly access or in connection with which Contractor’s staff may offer advice.
Client represents and warrants to Contractor that it:
(a) is engaged in a lawful business enterprise;
(b) can form legally binding contracts and is authorized to enter into this Agreement; and
(c) is in compliance with all applicable laws appropriate to its location of business and nature of work.
4. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, CONTRACTOR DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPORTED SOFTWARE, CORRECTIONS AND THE SERVICES PROVIDED HEREUNDER, INCLUDING PROMISES, REPRESENTATIONS AND WARRANTIES AS TO CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTY OF INFORMATION CONTENT OR SYSTEM INTEGRATION.
Without limiting the generality of the foregoing disclaimer, Contractor does not warrant that its advice or programming on behalf of the Client will be error free.
For a period of 3 (three) months following delivery of the Assistance Service Contractor shall have an obligation to correct demonstrated errors in the operation of the Supported Software which may appear as a result of incorrect provision of the Assistance Service.
CONTRACTOR SHALL NOT HAVE ANY OBLIGATION TO CORRECT ERRORS IN THE OPERATION OF THE SUPPORTED SOFTWARE IF THE PROGRAMMING CODE HAS BEEN MODIFIED BY CLIENT OR BY ANY OTHER PARTY.
4.1 Hosting Services
The Contractor makes no claims nor provides any warranty for website uptime. Contractor will take all reasonable actions to ensure the highest possible website uptime and will make all reasonable efforts in the event of a services outage. The Client will not be eligible for refund or other compensation due to hosting downtime.
5. Limitation of liability
Contractor disclaims all liability whatsoever to the Client or any other party for any act or omission that may result in consequential, indirect, incidental, special or such other damages including but not limited to, any damage for lost profits, loss of data or loss of business, even if Contractor has been advised of the possibility of such damages.
In no event shall the liability Contractor to the Client for any claim whatsoever related to this Agreement exceed the total amount of Support Fees paid for the Services that gave rise to the claim within the calendar year during which the claim arose.
This agreement shall run for the period agreed to and confirmed above, will automatically renew unless a change of terms is required and may be terminated by either party upon a written notice of termination with thirty (30) days notice. Upon termination of this Agreement, Contractor shall have no further obligation to provide any Services hereunder to Client. Upon termination, all outstanding fees owed by Client shall become immediately due and payable.
Termination of this Agreement shall not affect any obligation owed by one party to the other party that have accrued prior to such termination
7. Billing and Payment
The billing month begins on the day of a signed agreement.
All support fees are due in advance on the first of the billing month. The Client agrees that the Contractor is authorized to charge the credit card on file for the agreed amount indicated in the Service Package. Any Service Hours accumulated during the month above and beyond the predetermined amount are due and will be charged on the first day of the billing month. If no active Service Package is on file for the Client, all Service Hour fees are due and will be charged on the first day of the billing month. The Client will pay interest on all overdue amounts not exceeding the maximum amount allowed by law.
7.1 Termination of Payment Due to Non-Payment
Contractor reserves the right to terminate or suspend support and hosting services to any client who has an outstanding balance greater than 30 days from date of invoice. FatLab will notify the client of any such interruption of service. During suspension of service no files, data or other assets will be transferred to the Client until the account balance is up to date.
All tangible materials (Web Sites and authorized software used therein) in all circumstances remain the property of the Client.
9. Third-Party Contracts
The Contractor may contract with other individuals or companies acting on behalf of the Client to provide additional services.
10.1 Force majeure
Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
Client shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. Client agrees that this Agreement may be assigned by Contractor, in Contractor’s sole discretion.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
Except as explicitly stated otherwise, any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall be deemed to be delivered via Support Helpdesk on the Contractor’s Web site.
10.5 Additional terms
The Client and the Contractor represent that they have full power and authority to enter into this agreement and that it is binding upon the Client and Contractor and enforceable in accordance with its terms. This Agreement will be governed by the law of the Commonwealth of Virginia.
The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to the Services offered by Contractor:
(b) General Policies