This Agreement is between Just Program, LLC, a Florida limited liability company, d/b/a DigitalUs (“DigitalUs,” “Developer,” “us” or “our”), and the customer who orders and/or uses DigitalUs products and services (“You,” “Your,” “Client” or “Customer”).
This Master Services Agreement governs your purchase and use of all Products and / or Services offered by DigitalUs, as may be further described in this Agreement or any Work Order. This Agreement applies to you and your employees, agents, contractors, or other users who obtain Services from DigitalUs (each such person or entity being a “User”). You must accept the terms of this Agreement in order to use the Services.
BY ACCEPTING AND / OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE THAT YOU AND YOUR USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
This Agreement is the complete and exclusive agreement between you and DigitalUs regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
Your use of DigitalUs Services is governed by this Master Services Agreement and the Acceptable Use Policy included herein. When we use the term “Agreement” in any of the Master Services Agreement and the Acceptable Use Policy, we are referring to all of them collectively.
Service Level Standards
DURING NORMAL BUSINESS HOURS:
This is a direct line and you will be connected with an account manager for resolution.
AFTER NORMAL BUSINESS HOURS:
Answering system. Non-urgent tickets are assigned the next business day.
Requesting Support & Resolution of Issues:
At DigitalUs we make it easy to request support. Please feel free to contact us anytime at firstname.lastname@example.org and your request will be automatically assigned to the appropriate staff member. All issues are typically assigned on first come first served basis within 4 hours (during business hours).
In the case of emergency or other unplanned outages, the Client site shall not be down for more than five (5) hours without a resolution or work-around in place, assuming DigitalUs is immediately advised of any outages. A full resolution shall be provided by DigitalUs within two (2) business days. Performance of routine maintenance will be scheduled at mutually agreed-upon times which will be outside of normal business hours.
2.1 DigitalUs Obligations.
For all Orders accepted by DigitalUs and subject to this Master Service Agreement, DigitalUs agrees to provide the Services and the applicable support listed on your Orders.
2.2 Your Obligations.
You agree to do each of the following:
2.3 Acceptable Use Policy.
By agreeing to the terms and conditions of this Agreement, you agree to DigitalUs’ Acceptable Use Policy as set forth herein. This Acceptable Use Policy (the “AUP”) governs the Client’s use of all products and services (collectively, the “Services”) offered by DigitalUs, as may be further described in any written proposal submitted by DigitalUs to the Client or any service order forms submitted by the Client and accepted by DigitalUs. This AUP applies to the Client and the Client’s employees, agents, contractors, or other users who obtain Services from DigitalUs (each such person or entity being a “User”). BY REGISTERING FOR AND USING THE SERVICES, THE CLIENT ACKNOWLEDGES THAT HE/SHE HAS READ THIS AUP AND AGREE THAT ALL CLIENT’S USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AUP.
2.4 Intellectual Property Rights.
You warrant, represent, and covenant to DigitalUs that:
2.5 Third Party Products.
For your convenience, DigitalUs may provide you access to Third Party Products through certain Third Party Vendors. Neither DigitalUs nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that you will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (c) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and DigitalUs will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.
Except as set expressly forth in an Order, DigitalUs is not responsible for any security breaches affecting servers or accounts under your control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify DigitalUs immediately, and DigitalUs shall have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.
Any Confidential Information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) in connection with this Agreement that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential will be protected and held in confidence by the Recipient. Confidential Information will be used only for the purposes of this Agreement and related internal administrative purposes. Disclosure of the Confidential Information will be restricted to the Recipient’s employees, contractors, affiliates, or agents (including outside counsel and consultants) on a “need to know” basis in connection with the services, who are bound by confidentiality obligations no less stringent than these prior to any disclosure. Each party may disclose Confidential Information relating to the Services to providers of goods and services for the engagement to the extent such disclosure is necessary and reasonably anticipated. Confidential Information does not include information which: (i) is already known to Recipient at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of the Recipient; (iii) is independently developed by Recipient without benefit of Disclosing Party’s Confidential Information; or (iv) is received from a third party which is not under and does not thereby breach an obligation of confidentiality. Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, but that disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party.
This Agreement will be for the “Initial Contract Period” as further described in the Order. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Contract Period, the Agreement will renew on a month to month basis. If you do not wish to renew, then you must provide DigitalUs the Cancellation Request as provided in this Agreement.
This Agreement may be terminated in one of the following ways:
3.3 Termination Liability.
If you terminate this Agreement before the end of the Initial Contract Period other than for DigitalUs’ material breach, then you will be required to pay:
(a) All charges under this Agreement are due and payable on the due date of the invoices unless otherwise agreed to in writing.
(b) For recurring billing, Services are billed on the first day of each month and payments are due 30 days after the date of the invoice.
(c) For non-recurring fees (such as fees for initial set-up, implementation, development, consultation, paid for support request and any other non-recurring service) on or around the date delivered, or on or around the first day of the billing cycle that follows the date of delivery. Unless otherwise agreed in the Order or modified via request, your billing cycle will be monthly, beginning on the date that DigitalUs first makes the Services available to you.
(d) Charges that are not disputed within forty-five (45) days of the date charged are conclusively deemed accurate.
(e) You also will be responsible for any costs DigitalUs incurs in enforcing collection of any amounts due under this Agreement, including without limitation reasonable attorney’s fees, court costs, or collection agency fees.
(f) You will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for your account.
(g) DigitalUs has the right to charge you Non Sufficient Funds Fees if your payment method is check (cheque) and it was returned by the bank due insufficient funds. The fees represent the relevant administrative fees and are Thirty (USD $ 30) in the United States.
(h) If you pay by credit card or ACH or EFT, then DigitalUs will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account. You agree that you will notify DigitalUs of any changes to your account, your billing address, or any information that DigitalUs may reasonably require in order to process your payments in a timely manner.
(i) DigitalUs reserves the right to increase its fees by up to fifteen percent (15%) per year with no less than a thirty (30) day notice of such change.
(j) In order for DigitalUs to keep its rates low, payments must be made promptly. Bills will be deemed delinquent and assessed a $75 charge if payment is not received within thirty (30) days after the due date. If an amount remains delinquent more than forty-five (45) days after its due date, an additional ten percent (10%), or the highest rate allowable by law, will be added for each month of delinquency.
3.5 Refund and Disputes.
Except where expressly provided in this Agreement, all payments to DigitalUs are nonrefundable. You must report any overcharges or billing disputes to DigitalUs within forty-five (45) days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.
3.6 Data Retention / Server Reclaim Policy.
DigitalUs makes no guarantees about retaining any data stored on DigitalUs’s systems or servers following expiration or termination of this Agreement. DigitalUs will typically delete such data seven days following termination of subscription by either the Client or DigitalUs. You will not have access to the Client’s data stored on DigitalUs’ systems or servers during a suspension or following a termination.
4.1 Monitoring User Activity.
Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. DigitalUs exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including without limitation any information passing through DigitalUs’ host computers, network hubs and points of presence, or the Internet, or any content any User may post on any website. In no event will DigitalUs, its parent company, and their affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.
4.2 Interruption of Service.
DigitalUs is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, mechanical, electronic, communications, or third-party supplier failure). DigitalUs cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure if outside of DigitalUs’s reasonable control.
4.3 Warranty Disclaimer.
4.3.1 DigitalUs warrants to Client that the service will be performed in a timely and professional manner.
4.3.2 Except as set expressly provided in this Agreement, DigitalUs is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure).
4.3.3.EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY DIGITALUS OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER DIGITALUS, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. DIGITALUS, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.3.4. Software defects should be reported via submitting electronic tickets to email@example.com.
4.4 Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DIGITALUS’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, DIGITALUS’S LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO DIGITALUS UNDER THIS AGREEMENT DURING ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE SERVICES SET BY DIGITALUS UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.
4.5 Customer Indemnity.
To the extent permitted by law, you agree to indemnify, defend, and hold harmless DigitalUs, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by DigitalUs arising out of any breach of this Agreement by you, your Users, or your customers.
4.6 DigitalUs Indemnity.
To the extent permitted by law, DigitalUs agrees to indemnify, defend, and hold harmless Customer from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Customer arising out of any claim alleging that the Services as provided by DigitalUs infringe any third party’s intellectual property rights.
DigitalUs may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. If the Client does not agree to the terms of any modification, the Client may terminate the Agreement without any further liability by providing written notice to DigitalUs within 30 days of the posting of any modifications by DigitalUs.
With respect to Services rendered by DigitalUs in the United States of America, this Agreement will be governed by, and construed in accordance with, the laws of the state of Florida and venue for all disputes arising out of or related to this Agreement will be brought exclusively in the Orange County, Florida court.
Client gives DigitalUs the right to use Client’s name in advertising, publicity and other promotional endeavors.
You and DigitalUs are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and DigitalUs. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Neither Party may sell, assign or transfer any rights or delegate any duties under this Agreement either in whole or in part without the prior written consent of the other Party, nor will any attempted assignment or delegation without such consent be void. Client gives DigitalUs the express right to use Client’s name in advertising, publicity and other promotional endeavors. DigitalUs and you agree that, except as otherwise expressly provided in this Agreement, the Order, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.
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