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Additional Terms and Conditions
For Professional Services
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Additional Terms and Conditions for Professional Services
This Agreement is between Microix and the Customer identified on the Professional Services Order Form “Order Form” incorporating this Agreement.
- 1. Professional Services: Microix shall provide Services identified in the Professional Services Order Form ‘Order Form” on an independent contractor basis in its area of expertise and/or such other services as may be required by Customer from time to time for training and implementation and software customization. Nothing contained herein shall be construed to create the relationship of employer and employee between Microix and Customer or between Customer and any of Microix’s employees.
- 2. Term and Payment: The term and payment of the Agreement is detailed in Order Form. The term of the Agreement is for six months following the Effective Date or upon completion of Services, whichever is sooner. The fees set forth in, and in accordance with, the Order Form are non-cancelable and non- refundable.
- 3. Assumptions: Customer will reasonably cooperate with Microix and will provide safe and timely access to its premises and computer equipment, including remote access, adequate working space, facilities, and any other services, personal information, tools (including licenses), or materials that the parties agree that Microix may reasonably require to perform the Services. Customer will provide access to all hardware, software, licenses, and personnel necessary for Microix to provide the Services. Customer maintains an active maintenance and support plan for Microix software throughout duration of Services. Microix will abide by all polices and conform to Customer’s reasonable requirements in its use of and access to the forgoing. The Services will be performed under the direction and supervision of Customer personnel.
- 4. Change Orders: With respect to any proposed changes to the Services defined by this Agreement that do not materially impact the scope of either party's work effort required under this Agreement, the parties will cooperate in good faith to execute Change Orders in respect thereof and will not unreasonably withhold approval of such proposed changes as long as both parties are in agreement regarding the change order and approval is provided in writing by the Customer. Any changes, additions, deletions, or stipulations to this Agreement must be approved in writing.
- 5. Disclosure of Confidential Information: Periodically during the term of this Agreement, Customer may make available to Microix and/or consultant(s) certain confidential information, such as a list of Customer clients, billing procedures, trade secrets and general operation of Customer business. Microix will only use confidential information only for the purpose for which is provided under this Agreement. Since all such information is agreed by the parties to be a valuable, special, and unique asset of Customer, Microix agrees not to reveal such confidential information or any part of it to any person, firm, corporation, or association both during and after the term of this Agreement.
- 6. Warranty: Microix warrants that services will be of professional quality. The Customer’s sole and exclusive remedy and Microix’s liability for breach of the above warranty will be reperformance of Services. Any claim for breach of Microix’s warranty must be provided to Microix in writing within 90 days of performance of Services. DISCLAIMER. EXCEPT FOR WARRANTIES PREVIOUSLY STATED HEREIN, MICROIX DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY OR CONDITION BE EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
- 7. Limitation of Liability: UNDER NO CIRCUMSTANCE WILL MICROIX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MICROIX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT, OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID TO MICROIX UNDER THE ORDER FORM THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY'S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND MICROIX AND THE FEES CHARGED FOR THE SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
- 8. Indemnification: Each party agrees to indemnify, defend, and hold harmless the other party from and against any loss, cost, or damage of any kind (including reasonable outside attorneys’ fees) to the extent arising out of its breach of this Agreement, and/or its negligence or willful misconduct.
- 9. Non-Solicitation: Customer covenants that during the term of this Agreement and for a period of one (1) year from the termination of this Agreement, Customer will not, directly or indirectly, as an owner, officer, shareholder, employee, independent contractor, and/or consultant to any person or organization, whether for profit or nonprofit, solicit Microix’s employees, consultants, independent contractors, agents, or other representatives for placement or employment; will not, directly or indirectly, as an owner, officer, shareholder, employee, independent contractor, and/or consultant to any person or organization, whether for profit or non-profit, solicit Microix’s customer’s or prospects, or otherwise interfere with those contractual relations except as outlined in the Order Form.
- 10. Taxes: All Fees are exclusive of any sales or use taxes, value added tax, goods or services tax, or any and all similar taxes or legally imposed fees, duties or contributions based on such amounts payable, all of which shall be the sole responsibility of Customer whether due now or subsequently imposed by any jurisdiction. Customer will provide an appropriate tax exemption certificate, if applicable.
- 11. Severability: The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
- 12. Notices: All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, addressed as follows or to electronically to e-mail addresses:
- 13. Waivers: In the event that either party waives a breach of any provision of this Agreement by the other, that waiver will not operate to be construed as a waiver of later breaches by either party. In no event will any conduct of the other be deemed a waiver unless evidence by writing, wherein the other expressly consents to such waiver.
- 14. Assignment: Customer may not assign this Agreement or any of Customer's rights or obligations hereunder without Microix’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon the and inure to the benefit of the parties' respective successors, heirs, executors, administrators, personal representatives and permitted assigns.
- 15. Force Majeure: Neither party shall be in breach of the agreement to the extent that any delay or default in performance is due to causes beyond the control of the delayed or defaulting party, provided that the delayed or defaulting party immediately notifies the other party of the event, an estimate of the duration of the event, and the delaying or defaulting party’s plan to mitigate the effects of the delay or default.
- 16. Governing Law: This Agreement shall be construed in all respects under the laws of the State of Georgia. If any part of this Agreement shall be held to be void or unenforceable, such part will be treated as severable, leaving valid the remainder of this Agreement notwithstanding the part or parts found to be void or unenforceable.
- 17. Entire Agreement: This Agreement and the Order Form constitute the entire agreement between Customer and Microix for the Professional Services. This Agreement may be amended, altered, or modified only by written document signed by both parties.
