GO4 Technologies, LLC., Services Terms and Conditions
Effective February 26th., 2016
By entering into a Statement of Work with GO4 Technologies LLC entity (see Section 14 to see which entity you are contracting with), specifically, either
- GO4 Technologies LLC, a company organized under the laws of Florida, US Territory, with a place of business at 7550 S Red Road Suite 119, South Miami, FL, 33143
You (“Client”) agree to the following GO4 Technologies LLC Consulting and Support Services Terms and Conditions:
1. Definitions and Interpretation
1.1. Defined terms in this Agreement:
Agreement means these Consulting and Support Services Terms and Conditions and any Statement of Works executed as a part of and in connection with the Services specified herein.
Business Day means a day on which banks are open for business in Miami, other than a Saturday, Sunday or public holiday.
Business Hours means the hours of 9am until 5pm on Business Days.
Confidential Information means any information relating to the business or financial affairs of a party or any trade secret, technical knowledge, concepts, ideas, designs, programs, processes, procedures, innovations, databases, customer lists or information, sales plans or marketing plans, research, software, records, intellectual property or other information concerning a party.
Deliverable means any software, equipment, material, solution, report or document agreed to be delivered by GO4 Technologies LLC to the Client in the performance of a Statement of Work, and specifically referred to as a Deliverable in the applicable Statement of Work.
Enterprise Support Services Packages means any of the support services packages as more specifically outlined in Section 5 offered by GO4 Technologies LLC that Client may elect to purchase pursuant to a Statement of Work, that provide Client certain incident management and problem management support services.
Fees means the fees payable by the Client for the Services, as specified in the applicable Statement of Work.
Insolvent means being an insolvent under administration, or insolvent (each as defined in the Corporations Act) or having a controller (as defined in the Corporations Act) appointed, or being in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due, or having something with the same or a similar effect happen under the laws of any jurisdiction.
Incident Tracking System incorporates the Information Technology Infrastructure Library (ITIL) terminology for incident and problem management. These are defined as follows:
Incident means any event which is not part of the standard operation of a service and which causes, or may cause, an interruption to, or a reduction in, the quality of that service.
Known Error is a condition identified by successful diagnosis of the root cause of a problem, and the subsequent development of a work-around.
Problem means a condition often identified as a result of multiple Incidents that exhibit common symptoms. Problems can also be identified from a single significant Incident, indicative of a single error, for which the cause is unknown, but for which the impact is significant.
Intellectual Property means all patents, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, know-how, logos, designs, circuit layouts, trade marks, domain names, business names, copyright and similar industrial or intellectual property, whether or not now existing, and whether or not registered or unregistered.
Intellectual Property Rights means all intellectual property rights including all rights in the Intellectual Property, moral rights (as recognized under any applicable law), any right to have Confidential Information kept confidential, and any application or right to apply for registration of any of these rights.
Services means the services set forth in a Statement of Work.
Service Levels means the service levels for the Support Services as outlined in the Statement of Work and as part of the Enterprise Support Service Package that is purchased by Client.
Specifications means the Client’s specifications and requirements for the Services, as set forth in a Statement of Work.
Statement of Work or SOW means a document agreed by the parties in accordance with Section 2.1.
Support means activities that are provided by GO4 Technologies LLC relating to the Services or Products being provided pursuant to a Statement of Work. Typical examples of support include calls logged directly to the GO4 Technologies LLC Support Centre, incident diagnosis, server restarts, (scheduled or unscheduled) and escalation of support requests. This explanation cannot be interpreted as definitive and GO4 Technologies LLC reserves the right to determine the category of any work carried out under this Agreement. Activities of a consulting nature such as new feature development, design etc. are excluded from the definition of support.
Support Services means the Incident resolution and Problem management services described in a Statement of Work.
Tax means any sales tax, use tax, goods and services tax, value-added tax or other similar tax under any applicable law, but excludes any tax on income or capital gains.
Headings are for convenience only and do not affect interpretation. The singular includes the plural and conversely.
2.1. Statements of Work
GO4 Technologies LLC and the Client will work together to develop and agree upon one or more Statement of Works in relation to Services provided under this Agreement. The Statement of Work provides an estimate of the time needed to complete the Deliverables.
2.2. Service Delivery
GO4 Technologies LLC shall:
(a) perform the Services in accordance with the applicable Statement of Work;
(b) perform the Services with due care, skill and judgment, in a proper workmanlike manner, and in accordance with the Specifications;
(c) ensure that only suitably qualified and experienced personnel work on the provision of the Services;
(d) use reasonable commercial efforts to perform the Services in accordance with the timeframes set out in the relevant Statement of Work but will not be responsible for delays caused by the Client or for reasons beyond GO4 Technologies’ control;
(e) use reasonable efforts to perform the Support Services in accordance with the Service Levels but will not be responsible for delays caused by the Client for reason beyond GO4 Technologies LLC control; and
(f) in performing the Services, comply with all applicable laws and regulations.
3. Changes to Statements of Work
Either party may request a change to a Statement of Work. No such change is binding upon the parties unless:
(a) GO4 Technologies LLC proposal for implementing the change;
(b) the amount of additional fees, if any, payable by the Client to GO4 Technologies LLC as a result of the change; and
(c) the impact, if any, on the timeframes and/or the Service Levels for Support Services, if any, set out in the relevant Statement of Work, as a result of the change, are agreed upon in writing signed by the parties.
GO4 Technologies LLC will invoice the Client for the Fees monthly in arrears, unless otherwise stated in any Statement of Work.
The Client must pay the Fees within 30 Business Days of the date of the relevant invoice.
4.3 Hourly Rates
Unless otherwise specified on a Statement of Work, hourly rates that are outside of Business Hours shall be charged at one and half times the hourly rate specified on the Statement of Work.
4.4 Price Adjustment
GO4 Technologies LLC reserves the right to increase Client’s fees on each annual anniversary of the execution of this Agreement, subject to no less than 30 days prior written notification to Client.
4.5 Subscription Fees
In the event of a cancellation of a subscription service by Customer during the subscription period, Customer agrees that no refund shall be due and payable.
5. Enterprise Support Services
5.1. Description of the Enterprise Support Services Packages
Subject to the annual upfront payment of the applicable subscription fees as outlined on a Statement of Work, Client may elect to purchase from GO4 Technologies LLC, any of those certain Enterprise Support Services Packages offered by GO4 Technologies LLC. The Support Services offered in the Enterprise Support Services Packages are classified as “Services” under this Agreement, and will be more specifically outlined in a Statement of Work.
5.2. Response Times
All requests for Support Services received by GO4 Technologies LLC support centre in accordance with this Agreement will receive a response from GO4 Technologies LLC in accordance with the level of support purchased as detailed in the Statement of Work. This request will be logged by GO4 Technologies LLC in the Incident Tracking System, and the details of the report (including tracking number) will be communicated to Client contact who made the request.
Once a request has been logged in the Incident Tracking System in accordance with Section 5.2, GO4 Technologies LLC will commence work to try and repair the issue in accordance with the timeframes defined in the Statement of Work. To avoid doubt, GO4 Technologies LLC does not guarantee (under this Agreement or otherwise) to be able to resolve any issue.
5.4. Assumptions and Dependencies
GO4 Technologies LLC is only responsible for Service Levels with regard to Supported Applications that GO4 Technologies LLC has agreed to support as set forth in a Statement of Work. Levels of Support provided by GO4 Technologies LLC are subject to the following dependencies:
(a) Availability of, and accessibility to, the Client’s network and server infrastructure;
(b) Time waiting for responses from third parties will not be counted towards the response times included in the Service Levels;
(c) Time waiting for user acceptance sign-off or time delays due to incorrect logging of incidents is not included in determining whether Service Levels have been met; and/or
(d) The quality of the Support Services depends on the accuracy of up to date information provided by the Client to GO4 Technologies LLC.
5.5. Client Responsibilities
(a) Provision of Support Services by GO4 Technologies LLC is dependent on the Client meeting its responsibilities as set out below:
(b) The Client will organize required account privileges for all systems that GO4 Technologies LLC is required to support as part of the Support Services; and
(c) The Client will provide GO4 Technologies LLC with access to all required resources, including (but not limited to) network and servers. The level of access is at the discretion of Client and may affect the level of Support that GO4 Technologies LLC can provide.
5.6. Hours of Operation
GO4 Technologies LLC support centre will provide Support Services for issues raised with it by email or telephone depending on the level of support purchased under an Enterprise Support Services Package and as outlined on a Statement of Work.
Each party acknowledges that in the course of their association with each other they will have access to Confidential Information.
Each party will, and will procure that their respective employees and contractors:
(a) treat all Confidential Information as confidential, not use such confidential information except as permitted hereunder, and not make public or disclose to any other person that Confidential Information without the prior written consent of the disclosing party;
(b) prevent third parties from gaining access to Confidential Information;
(c) immediately return all of the disclosing party’s Confidential Information (including all copies) upon written request of the disclosing party.
This Agreement imposes no obligation on the receiving party with respect to Confidential Information which:
(a) was in the receiving party’s possession before receipt from the disclosing party;
(b) is or becomes a matter of public knowledge through no fault of such receiving party;
(c) is rightfully received by such receiving party from a third party without a duty of confidentiality;
(d) is independently developed by the receiving party;
(e) is required by law to be disclosed by the receiving party in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party cooperates with the disclosing party’s efforts to seek a protective order or other appropriate remedy; or
(f) is disclosed by receiving party with the disclosing party’s prior written approval.
6.4. Equitable Relief
Each party acknowledges that money damages may not be sufficient compensation for a breach of this Section 6, and each party agrees that the other may seek and obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy to stop Confidential Information from becoming public in breach of this Section 6.
Each party’s obligations under this Section 6 shall survive the termination of this Agreement for any reason whatsoever.
7. Software Licenses and Training Credit Purchases and Collection of Information for Specific Purposes
7.1. Client software licenses
The Client will be responsible for obtaining all software licenses for use of software on equipment owned by the Client. This Agreement is not an agreement by GO4 Technologies LLC to license any commercially available GO4 Technologies LLC or third party software.
7.2. Application specific software licenses
Where the Client requires GO4 Technologies LLC to use an application specific software license for the purposes of the Services, the Client will be responsible for obtaining such license and ensuring that it can be validly used by GO4 Technologies LLC for the purposes of performing the Services. Unless otherwise agreed, all such licenses will be held by the Client.
7.3 Collection of Information
GO4 Technologies LLC does in some cases capture and aggregate system health, performance and utilization data from the systems its add-ons are installed on. However, GO4 Technologies LLC does not read or capture Application Content that the Client creates while using the plug-in or application.
The aggregated data is used to (a) better understand the usage of the add-ons; (b) identify usage patterns; and (c) enhance the ability to provide technical support and greater value to Clients. On occasion, the collected system, performance and utilization data will be used for the purposes of developing and refining sales and marketing programs.
For purposes hereof, “System” means the operating system, plug-in and the application to which it integrates. The term “Application Content” means content directly inputted into the system by the Client.
The Client has the option to opt out by notifying GO4 Technologies LLC via email at legal@GO4Technologies.com.
8. Intellectual Property
8.1. Pre-Existing and General Intellectual Property
The Intellectual Property Rights owned by each party before GO4 Technologies LLC commences providing the Services shall remain the property of that party. Any ideas, concepts, techniques or other intellectual property developed by GO4 Technologies LLC in the course of producing a Deliverable remain the property of GO4 Technologies LLC.
8.2. Client Intellectual Property
Unless otherwise agreed in a Statement of Work, and subject to Section 8.1, ownership of all Intellectual Property Rights in a Deliverable will vest in the Client upon receipt of the final payment by GO4 Technologies LLC for the deliverables as detailed in the SOW.
8.3. Third Parties
Third party Intellectual Property Rights will remain the property of such third party.
To the extent permitted by applicable law, each party is prohibited, during the term of the Agreement and for a period of 12 months after the expiration or termination of this Agreement, from soliciting or endeavoring to entice away from the other party any employee of the other party or any contractor engaged by that other party at any time without the prior written consent of the other party.
10. Disclaimer of Warranties and Limitation of Liability
10.1. Disclaimer of Warranties
THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. IN PARTICULAR, GO4 TECHNOLOGIES LLC DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GO4 TECHNOLOGIES LLC DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF AND TO THE EXTENT ANY WARRANTIES OR CONDITIONS CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED, GO4 TECHNOLOGIES LLC SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY CLAIM UNDER SUCH WARRANTY OR CONDITION SHALL BE, AT THE OPTION OF GO4 TECHNOLOGIES LLC, SUPPLYING THE SERVICES AGAIN OR REFUNDING TO CLIENT ALL AMOUNTS PAID BY THE CLIENT FOR THE AFFECTED SERVICE OR DELIVERABLE.
10.2. Limited Liability
Certain legislation, including the Competition and Consumer Act 2010 (Cth), may imply warranties or conditions or impose obligations upon GO4 Technologies LLC, which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which GO4 Technologies LLC is entitled to do so, GO4 Technologies LLC limits its liability in respect of any claim under those provisions to, at the option of GO4 Technologies LLC to supplying the services again; or paying the cost of having the services supplied again.
10.3. Consequential Loss
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL GO4 TECHNOLOGIES LLC BE LIABLE TO THE CLIENT ON ACCOUNT OF ANY CLAIM (WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER SORT, BREACH OF ANY STATUTORY DUTY OR OTHERWISE) FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OF OR INTERRUPTION TO THE CLIENT’S BUSINESS, OR FOR ANY DAMAGES OR SUMS PAID BY THE CLIENT TO THIRD PARTIES, EVEN IF GO4 TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY SERVICEROCKET OF THIS AGREEMENT THAT RESULTS IN DIRECT DAMAGES SERVICEROCKET’S LIABILITY FOR SUCH DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO GO4 TECHNOLOGIES HEREUNDER.
11.1. Third Party IP Infringement Claim
GO4 Technologies LLC shall indemnify Client against any third party claim that GO4 Technologies LLC provision of the Services or any Deliverable infringes upon or violates any Intellectual Property Rights of third parties, and shall pay those costs and damages awarded by a court of law in a final non-appealable order against Client that are specifically attributable to such claim. The foregoing obligations are conditioned on Client notifying GO4 Technologies LLC promptly in writing of such claim.
11.2. Limitation on GO4 Technologies LLC Indemnification
Notwithstanding the foregoing, GO4 Technologies LLC shall have no obligation under this Section 11 or otherwise with respect to any infringement claim based upon (i) any use of the Deliverables not in accordance with this Agreement, (ii) any use of the Deliverables in combination with other products, equipment, software, or data not supplied by GO4 Technologies LLC, (iii) Client’s continued use of any non-current, unaltered version of the Deliverables following notification by GO4 Technologies LLC of the requirement that Client must use a more recent version of the Deliverables, or (iv) any modification of the Deliverables by any person other than GO4 Technologies LLC.
11.3. GO4 Technologies LLC Rights to Procure, Replace or Refund
In addition to and not in lieu of GO4 Technologies LLC obligations above, if any third party claim is made against Client, and/or GO4 Technologies LLC reasonably believes, that Client’s use of the Deliverables violates the Intellectual Property Rights of any third party, GO4 Technologies LLC may, at its option and expense: (a) procure for Client the right to continue using the Deliverables as provided herein or (b) replace or modify the Deliverables so that they become non-infringing, or (c) refund to Client all fees paid by Client to GO4 Technologies LLC hereunder for such Deliverables. This Section 11 sets forth GO4 Technologies LLC entire liability and Client’s exclusive remedies in the event of a claim of infringement.
Either party may terminate this Agreement immediately by written notice to the other party if the other party breaches any provision of this Agreement, and the breach has not been remedied within 20 Business Days after service of written notice of the breach.
12.2. Failure to Pay, Insolvency and Cessation of Business
Either party may terminate this Agreement immediately by written notice to the other party if that other party:
(a) fails to make a payment within the time period specified under this Agreement;
(b) becomes, threatens or resolves to become Insolvent; or
(c) ceases or threatens to cease conducting business in the normal manner.
Either party may terminate this Agreement by providing 30 days’ advance written notice to the other party and in the case of Client, paying in full all amounts due and owing hereunder, without liability to pay any termination fee, except if a Statement of Work has not been completed.
13. Consequence of Termination
13.1. Payments on Termination
Upon termination of this Agreement, the Client shall pay to GO4 Technologies LLC any outstanding amounts (either billed or accrued) which are payable to GO4 Technologies LLC as of the date of termination.
13.2. Return of Information on Termination
Upon termination of this Agreement, each party must return, or destroy, at the other party’s option, all documentation and information relating to the other party’s business (in whatever form it is held including but not limited to written, graphic or electromagnetic form, and all copies) in that party’s possession or control. Such information includes, without limitation, any Confidential Information and any records relating to a party’s Intellectual Property.
13.3. Effect of Termination
Termination of this Agreement will not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination including, without limitation, any claim for damages as a result of the occurrence of an event which gives rise to a right of termination.
Notices given under this Agreement:
(a) must be in writing addressed to the intended recipient at the address last notified by the intended recipient to the sender;
(b) must be signed by a person duly authorized by the sender; and
(c) will be taken to be served when delivered, received or left at the intended recipient’s address, but if delivery or receipt occurs on a day on which business is not generally carried on in the place to which the notice is sent, or later than 5pm on that date at that place, it will be taken to have been served at the commencement of business on the next day on which business is generally carried on in that place.
14.2. Entire Agreement
This Agreement embodies the entire agreement between the parties with respect to its subject matter and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this Agreement.
14.3. Nature of engagement
GO4 Technologies LLC is engaged by the Client as an independent contractor. Nothing in this Agreement creates a relationship between the parties of employer and employee, principal and agent, partnership or joint venture.
All additions or modifications to this Agreement must be made in writing and must be signed by both parties.
Neither party may assign or otherwise transfer its rights under this Agreement without the prior written consent of the other party, except that GO4 Technologies LLC may assign this Agreement to any affiliate or other entity in connection with a reorganization, merger, consolidation, acquisition or other re-structuring involving all or substantially all of the voting securities or assets of GO4 Technologies LLC.
The terms of a Statement of Work will take precedence over this Agreement to the extent of any inconsistency in relation to that Statement of Work. Any pre-printed or other standard terms set forth on any Client purchase order, acknowledgment or other form will be deemed void and of no force or effect, irrespective of whether such form is countersigned by GO4 Technologies LLC. In the event of a conflict between this Agreement and any GO4 Technologies LLC or third party licenses included within any software or Deliverables, the provisions of those licenses will control.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability, but will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
14.8. No Waiver
No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that right, power or remedy.
14.9. Governing Law
This Agreement is governed by the laws of the countries specified in the table in Section 14.10 without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. The parties submit to the non-exclusive jurisdiction of such courts.
14.10. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
Who you are contracting with under this Agreement, Who you should direct notices to under this Agreement and what law will apply in any lawsuit arising out of, or in connection with this Agreement and which courts have jurisdiction over any such lawsuit, depend on where you are located.