TERMS OF SERVICE

WITH MASTER SERVICES AGREEMENT

THESE TERMS OF SERVICE govern your use of the power1.com website and any other digital platforms (collectively, “Platforms”) owned or operated by EVALCOR, INC., a Florida corporation doing business as POWERONE (“Company,” “we,” “us,” “our”), and these Terms of Service further include our Master Services Agreement (“MSA”), which governs our relationship with you if you retain us for information technology (“IT”) management service, phone services, or other services we provide. The entirety of these Terms of Service, along with the MSA, any Quotes (which include the quote itself and any corresponding service-specific agreement), and our Privacy Policy, together constitute the “Agreement.” We may update the Terms of Service, MSA, or Privacy Policy at any time. 

By accessing and using the Website and/or using or continuing with our Services, you expressly agree to the terms of the Agreement. User/Client is responsible for reviewing the entire Agreement prior to engaging Company for Services, and continuation of use of our Website or other Services constitutes agreement to the then-current Agreement terms.

DEFINITIONS.

“Agreement” means the entirety of any and all of the following: (1) these Terms of Service (by accessing our website or any other digital platform owned or operated by us, or by accepting a Quote, which includes a quote or service-specific agreement), (2) our Privacy Policy, (3) our MSA contained within these Terms of Service, and (4) any signed Quote.

“Company,” “we,” “us,” “our” means Evalcor, Inc. doing business as PowerOne.

“Client,” “User,” “you,” “your,” means any user of any Company Platform, and/or party to our MSA and/or any Quote, and/or any purchaser of Products.

“Website” means any part or all of the power1.com website and any other website, mobile application, or other digital platform owned or operated by Company.

“Claims” shall mean losses, damages, claims of any kind or nature (including, without limitation, claims for attorney’s fees), causes of action, lawsuits, investigations, judgments, and/or other legal or adverse action.

“Device” means any item or piece of hardware or equipment which is a subject of the Services, for example, without limitation, computer, laptop, digital pad, phone, etc.

“Principals” means a party’s affiliates, parent companies, subsidiaries, and each of their respective owners, officers, directors, managers, members, partners, shareholders, and joint venturers.

“Related Parties” means the referenced party along with its Principals, employees, contractors, subcontractors, and other agents.

“Business Relations” means the referenced party’s Related Parties, plus clients, customers, clients, vendors, suppliers, servicers, and other business relations.

WEBSITE/PLATFORM USE

CONTENT OF WEBSITE.

Company shall have complete discretion to determine the content and services of the Website. Company may expand, contract, amend, modify, edit, delete, or eliminate part or all of the Website, or its functionality, at any time, for any reason or no reason, in its sole discretion.

MINIMUM AGE; GEOGRAPHY.

YOU MAY ONLY USE OUR WEBSITE FOR LAWFUL PURPOSES, AND YOU MUST BE AT LEAST 18 YEARS OF AGE. WE DO NOT KNOWINGLY COLLECT PERSONALLY IDENTIFIABLE INFORMATION FROM ANYONE UNDER THE AGE OF 18. DO NOT USE OR ACCESS OUR WEBSITE OR PROVIDE US WITH ANY INFORMATION ABOUT YOURSELF IF YOU ARE UNDER 18 YEARS OF AGE OR OUTSIDE THE UNITED STATES.  

BY ACCESSING OUR WEBSITE, YOU REPRESENT AND WARRANT YOU ARE AT LEAST 18 YEARS OF AGE, AND IF PURCHASING AGE-RESTRICTED PRODUCTS, YOU REPRESENT AND WARRANT YOU ARE OF LEGAL AGE TO PURCHASE SUCH PRODUCTS. WE RESERVE THE RIGHT TO AGE-GATE PART OR ALL OF THE WEBSITE AND/OR REQUIRE VALID GOVERNMENT-ISSUED PHOTO IDENTIFICATION TO VERIFY YOUR AGE PRIOR TO ANY PURCHASES OR PROVIDING YOU WITH ACCESS TO ANY AGE-RESTRICTED SERVICES.

VOID WHERE PROHIBITED. 

You shall not use the Website in any jurisdiction where its use is prohibited, including, without limitation, in any jurisdiction where the Website is prohibited. You are solely responsible for compliance with all laws, rules, regulations, ordinances, codes, treaties, judicial and other government orders (“Laws”) applicable to your use of the Website and any business you operate.

NO ADVICE OR WARRANTIES.

Under no circumstances does Company or the Website provide medical, psychological, financial, legal, or other professional advice, and any information or statements provided by Company or on the Website shall not be construed as such. Use of the Website does not establish any kind of professional relationship, including, without limitation, medical, psychological, or legal. Information or other statements provided on the Website are for informational purposes only, without warranties of any kind, including no warranties of accuracy or completeness, and shall not be relied upon for making decisions. Company makes no warranties or guarantees regarding the accuracy, reliability, or outcomes of information, or other statements. In every circumstance, You are responsible for your own conduct and decisions.

PRIORITIZATION. 

The Website will be developed and implemented on a schedule, and in priority of segments, as Company determines necessary or desirable. Exact commencement/start dates for various functionalities of the Website may vary or deviate from estimates, without liability to Company.

THIRD PARTY PROVIDERS. 

If, in Company’s discretion, any aspect of the Website requires third party support (from “Third Party Providers”), Company may retain Third Party Providers in its sole discretion and at its sole cost and expense. Company is not responsible to User for the terms of any Third Party Provider, nor for any malfunction, security breach, or other failure of a Third Party Provider’s services. User shall be subject to any Terms of Service and Privacy Policy of a Third Party Provider, which User acknowledges and agrees Company has no control over or liability from. User shall commit no act or omission that causes Company to breach any third party’s Terms of Service.

Company may include third party links on the Website. Use is at your sole risk, without warranties of any kind. Company is not responsible for any transactions you enter into with third parties, or for the content of any third party links.

CONTENT OF INPUTS. 

All content, uploads, and other inputs into the Website by User shall be relevant to the purposes of this Agreement and purposes of the Website; and no prompt, upload, or input shall be of an illegal, harassing, bullying, abusive, profane, or otherwise harmful or irrelevant nature, as determined by Company. For any User information or content, uploads, inputs, or other deposits into the Website or otherwise in the Website environment by User (collectively, “User Content”), the deposit of User Content into the Website is done at User’s sole risk and liability in all circumstances, including, without limitation, in terms of Company’s or its Third Party Providers’ exposure to such information. 

SECURITY OF USER’S ACCOUNT.

User is responsible for the security of User’s access credentials, and for any access to its account by any person or entity to whom User gives access. User is responsible for any and all financial transactions made between User’s account and any third party. Company cannot protect against, and will not be liable for, fraud/charges arising from third party transactions.

SUSPENSION OR BLOCKING FOR UNAUTHORIZED USE.

In the event of a User’s unauthorized use, including, without limitation, use of the Website in violation of this Agreement, or User’s harassing, abusive, fraudulent, or dishonest correspondence or conduct toward Company or its Business Relations, Company may suspend or permanently block User’s access to the Website, in addition to any and all other rights or remedies available to Company at law or in equity.

User’s harassing, abusive, fraudulent, or dishonest correspondence or conduct toward Company, its Related Parties, Business Relations, or Third Party Providers, other users, other travel participants, or violation of the Intellectual Property, Confidentiality, Non-Solicitation, Non-Disparagement section, or otherwise interfering with Company’s ability to optimally operate Company’s business, none of which require an opportunity to cure; or

Any other breach of this Agreement by User besides the foregoing, which is not cured within ten (10) days of written notice by Company.

RESPONSE; DELAYS. 

Company’s response to issues relating to the Website will be handled in accordance with Company’s schedule.  In no event will Company be responsible for delays in response or its provision of the Website, nor for delays caused by Third Party Providers, nor other reasons beyond Company’s control.

NO WARRANTY. 

User acknowledges, understands, and agrees that the content of the Website shall be solely in Company’s discretion; that Website content may or may not align with User’s expectations; that the Website may not perform optimally or at all, that there are no warranties or guarantees of functionality, fitness for a particular purpose, accuracy, completeness, outcomes, security of the Website, or the information contained therein, or otherwise, and that User shall not and will not rely on any results or outputs of the Website. Website data will be stored on a third-party cloud-based service (such as, for example, GoDaddy or Amazon Web Services, or a different provider), in accordance with its terms of service. We may change our storage provider and any Third Party Provider at any time, without notice. Inclusion of any User Content is done at User’s sole risk.

LIMITATIONS ON LIABILITY; FORCE MAJEURE.

1. This Limitations on Liability section shall only apply with respect to a User’s access and use of the Website. In the event of a Master Services Agreement (“MSA”) between Company and User, or Company and an entity on whose behalf User operates, the Limitations of Liability section in the MSA shall govern with respect to the Services applicable to the MSA.
2. User acknowledges and agrees that Company would not enter into this Agreement nor provide use of the Website unless Company could rely on the limitations described in this paragraph. In no event will Company or its Business Relations be liable to User, its heirs, personal representatives, heirs, friends, family members, or any entity on whose behalf User accesses the Website (“User Representatives”) for any amount in excess of actual amounts paid by User or the entity on whose behalf User accesses the Website, to Company, in the three (3) months immediately preceding the first event alleged to give rise to a Claim, or Ten Thousand Dollars ($10,000.00), whichever is less, for any Claim arising out of or relating to User’s access to or use of the Website. 
3. Under no circumstance shall Company be responsible to User for any other actual, indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits, savings, other indirect or contingent event-based economic loss, or any other loss or damage of any kind or nature whatsoever (“Losses”) arising out of or in connection with the Website, User’s use or misuse of or participation in the Website, or from cyberattacks, data loss, malware related issues, cyber-ransom, privacy-related or other security breaches, or any and all third party acts or omissions of any kind or nature whatsoever, even if User or the entity for whom User operates has been advised of the possibility of such damages. In all instances, Company’s aggregate liability to any User, collectively, for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement, whether in contract, tort, indemnification, or negligence, shall be limited to the amount described above. 
4. For any matter in which Company is not liable to User, Company likewise shall not be liable to any person or entity claiming through User or due to their relationship with or relating to User. 
5. Under no circumstances shall Company be liable or responsible for User’s or any third party’s behavior (including without limitation that of event hosts or the general public), nor any such person’s or User’s breach of any agreement, negligence, violation of Law, violation of intellectual property rights, willful misconduct, or any such party’s tortious act or omission.
6. Force Majeure. Neither Company, nor its Related Parties shall be liable for any failure of, or delay in, the performance of its obligations due to events (or the effects of events) beyond its reasonable control, whether foreseeable or not, including but not limited to: shortage or unavailability of ingredients; shortage or unavailability of materials; delays in transportation, couriers, carriers, customs, ports, or the like; equipment breakdown; interference by any third party; strike; lockout; work stoppage; labor dispute; utility outage; fire; explosion; flood; earthquake; tornado; hurricane; acts of a public enemy (for example and without limitation, active shooter, bomb, terrorism, or threats of same); political unrest; protest; pandemic disease outbreak; local disease outbreak; act of God; any other natural disaster or third party disaster; trade sanction; embargo; act of war; sabotage; insurrection; eminent domain; government required quarantine; blockade; mutiny; condition caused by national emergency or state of emergency declared by applicable jurisdiction; government or quasi-government shutdown; new or changed judicial, executive, legislative, administrative, or other law, rule, order, or government or quasi-government act; or any other act or cause beyond the reasonable control of such party. 
7. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose.

INDEMNIFICATION.

User, on behalf of itself, any entity on whose behalf User accesses the Website, and such entity’s Related Parties (“Indemnifying Party) shall indemnify, defend, and hold harmless Company and its Related Parties (each, including Company (for the avoidance of doubt), an “Indemnified Party”) from and against any and all costs, expenses (including, without limitation, attorney’s fees), fines, penalties, losses, damages, claims, causes of action, lawsuits, investigations, judgments, and other legal or adverse action arising out of or relating to: (a) breach of any term or provision of this or any other agreement with any party, (b) negligence, (c) violation of Law, (d) violation of any third party right, (e) willful misconduct, (f) any claim for worker’s compensation asserted against an Indemnified Party, (g) causing property damage, system or network damage, harm to Company’s customers or clients, personal injury, or death, (h) tortious act or omission, any or all of the foregoing by User; or (i) an Indemnified Party’s preparation of, participation in, and legal guidance for, responses to any demands (including, without limitation, attorney communications related to or in response to such demands), subpoenas (of any kind, including, without limitation, for materials, documents, deposition, etc.), discovery, or any other mandatory or requested involvement in, or the Indemnified Party’s defense of, any lawsuit, arbitration, mediation, investigation, or other legal process or government inquiry, unrelated to this Agreement, due to User’s, or the entity on whose behalf User accesses the Website, or such entity’s Related Party’s involvement (as a party, witness, or otherwise) in such dispute or legal process; (j) disputes arising out of or relating to any cyberattacks, data loss, malware related issues, cyber-ransom, privacy-related or other security breaches, and any and all other third party acts or omissions of any kind or nature whatsoever, or (k) any other provision of this Agreement that specifically provides for an Indemnified Party’s indemnification (collectively, all of the foregoing shall be included within the definition of “Claims” for purposes of this Indemnification section), all including all costs, expenses, attorney’s fees, and other actual damages of any nature, including without limitation collection fees and expenses of every kind, lost profits, economic damages, statutory damages, consequential damages, or damages of any other kind incurred by an Indemnified Party, or for which an Indemnified Party is held liable or incurs via required involvement in litigation, or in settlement of Claims, plus attorney’s fees for counsel of the Indemnified Party’s choosing, third party costs and attorney’s fees for which an Indemnified Party is held liable or incurs via settlement of Claims, and all costs and fees associated with the Indemnified Party’s defense of any such Claims at all levels of pre-litigation, litigation, settlement, trial, appeal, enforcement, and bankruptcy, all less any insurance proceeds covering same. Each party shall be permitted to have counsel of its choosing participate in the prosecution or defense of the applicable Claim. Each party shall have the sole right and option to settle any Claim for which it could be held liable.

In all instances, User is responsible for the acts, omissions, negligence, willful misconduct, or breaches of this Agreement or any other agreement, violation of Law or third party right, by User, and for any and all internal disputes within User and any entity on whose behalf User accesses the Website, or within any contractual or other legal arrangement involving User or such entity (whether independent contractor, joint venture agreement, or otherwise), or between User and such entity with any third party. Notwithstanding any other term or provision of this Agreement, Company is under no circumstances liable to User, any entity on whose behalf User accesses the Website, or any interested person associated with User, if Company receives conflicting or opposing demands from User and/or an entity on whose behalf User accesses the Website and/or interested persons associated with User.  

DISPUTE RESOLUTION; MISCELLANEOUS.

The same Dispute Resolution and Miscellaneous terms provided below in the MSA shall likewise apply to Website/Platform Use.

MASTER SERVICES AGREEMENT (“MSA”)

VOID WHERE PROHIBITED. 

You shall not use the Services in any jurisdiction where its use is prohibited. You are solely responsible for compliance with all laws, rules, regulations, ordinances, codes, treaties, judicial and other government orders (“Laws”) applicable to your use of the Services and any business you operate.

NO ADVICE OR WARRANTIES.

Under no circumstances do Company or the Services provide medical, psychological, financial, legal, or other professional advice, and any information or statements provided by Company or the Services shall not be construed as such. Use of the Services does not establish any kind of professional relationship, including, without limitation, medical, psychological, or legal. Information or other statements provided in carrying out the Services are for informational purposes only, without warranties of any kind, including no warranties of accuracy or completeness, and shall not be relied upon for making decisions. Company makes no warranties or guarantees regarding the accuracy, reliability, or outcomes of information, or other statements. In every circumstance, You are responsible for your own conduct and decisions.

INTELLECTUAL PROPERTY. 

“Intellectual Property” means, without limitation, any and all domestic or international trade names, brand names, fictitious names, trademarks, service marks, trade dress, trade designations, trade secrets, copyrights or copyrightable works, patents, rights of publicity, designs (whether artistic, technological, functional, or other type of design), artwork, label designs, logos, drawings, specifications, work product, concepts, prototypes, blueprints, plans, formulas, systems, schemas, recipes, methods (including without limitation delivery, storage, receipt, transmission, presentation, and manufacture of audio, video, formulaic, informational, or other data or content), techniques, business models, writings, graphics, reports, projections, or any other compilations of information, software of any and every kind, software and computer codes of any and every kind, software development tools, assemblers, compilers, device drivers, software libraries, firmware, hardware, web domain names, technology, technical information, scientific information, processes, strategies, templates, forms, discoveries, research and development data, customer lists, databases, database schemas, financial information, pricing models, personnel information, training methods, marketing plans or techniques, business plans or proposals, inventions (whether patentable or not), discoveries, proprietary information, know-how, data, written material, records, and all improvements and derivatives thereof, and all other intellectual property, proprietary rights, goodwill, and documents related thereto, whether registerable or not, whether registered or not, and whether reduced to practice or not, which exists, is embodied in, or comes within the scope of the Website, along with any and all applications for registration of same in any jurisdiction, and any and all renewals or extensions thereof, together with all other rights and interests accruing by reason of domestic or international conventions with respect to intellectual property, all together with any or all rights to royalties resulting from the licensing of any Intellectual Property and the rights to pursue damages, injunctive relief, or other remedies for infringement or misuse. INTELLECTUAL PROPERTY FURTHER INCLUDES ANY AND ALL USER CONTENT AS DEFINED IN THE “CONTENT OF INPUTS” SECTION IN THE TERMS OF SERVICE, AS WELL AS ANY AND ALL USER FEEDBACK AND IDEAS PRESENTED BY A USER OR CLIENT TO COMPANY. For the avoidance of doubt, the definition of Intellectual Property and the items and materials that are covered by the scope of this definition shall be construed as broadly as possible in favor of Company.

1. 1. Ownership of Intellectual Property. 
      1. All Intellectual Property embodied within, uploaded to, deposited to, or otherwise associated with the Website is and shall remain solely the property of Company. User/Client hereby assigns, grants, conveys, and transfers to Company all Intellectual Property rights associated with User/Client Content, and any and all User/Client feedback and ideas presented to Company, along with the goodwill associated therewith.
      2. Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, trade secrets, copyrights, and other Intellectual Property owned by such party before, during, or after the Term of this Agreement, whether registered or not, and whether reduced to practice or not and nothing in this Agreement constitutes work for hire or conveys or grants any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the avoidance of doubt, you understand and agree that we own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. If we provide licenses to you for third party software, then you understand and agree that such software is licensed, and not sold, to you, and your use of that software is subject to the terms and conditions of (i) this Agreement, (ii) the applicable Quote, (iii) written directions supplied to you by us, and (iv) any applicable EULA; no other uses of such third party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied, with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.
   2. License to use Website. During the term of this Agreement, Company provides User with a limited, non-exclusive, non-transferable, royalty-free, license, in the territory of the United States, to access the Website and use it on the terms of this Agreement, and for no other purpose. In the event of paid services on the Website, if Company suspects usage beyond one User on an account, Company may require proof of each actual User’s membership, and may suspend or terminate User’s account and usage if such proof is not provided or not sufficient. Each User may be permitted or required to establish an account to access the user-end portions of the Website with login credentials (which may be provided by Company unless Company permits the User to select their own login credentials). Login credentials shall be kept in confidence except as may be required by Company to be provided to Company. Login credentials shall only be used for the purposes of this Agreement, and User shall not provide User’s login credentials to any third party. 
   3. Protection of Intellectual Property. User shall not do or attempt, directly or indirectly, nor encourage others to do or attempt any of the following:
      1. register or use any other trade name, trademark, service mark, or other form of Intellectual Property incorporating or based in whole or in part on any of the Intellectual Property;
      2. use any Intellectual Property as part of any corporate or trade name, as part of prominent signage displaying its business name, or in connection with unauthorized goods or services;
      3. use the Intellectual Property in combination with any other intellectual property;
      4. debrand, rebrand, or private label any of the Intellectual Property;
      5. deconstruct, decode, decompile, disassemble, reverse engineer, or otherwise tamper with any of the Intellectual Property;
      6. copy, or duplicate the Intellectual Property, or develop any derivative works thereof, or include any portion of the Intellectual Property in any work product;
      7. separate the Intellectual Property into component parts, or install or attach other software, programs, devices, or intellectual property to the Intellectual Property;
      8. viii.remove any product identification, or notices of any proprietary restrictions, or Intellectual Property designation;
      9. disclose to others any financial, marketing, customer, personnel, or other business information of Company, including, without limitation, non-publicly known Intellectual Property of Company, discovered through User’s violation of these Terms;
      10. hold itself out as having any ownership interest in the Intellectual Property;
      11. license the Intellectual Property to a third party;
      12. dispute the validity, ownership, or enforceability of any of the Intellectual Property; oppose the registration of any pending registration application; or petition to cancel the registration of any registered Intellectual Property;

any other thing that would constitute infringement of, or which invalidates, dilutes, diminishes, tarnishes, harms, or otherwise adversely affects the functionality of the Intellectual Property, the value of the Intellectual Property, or the goodwill associated therewith.

SCOPE.

1. Scope of Services. The MSA covers the broad terms of our relationship. By retaining our services, you agree to the terms of our MSA. A Quote signed by both parties governs the specific services you have retained us for. The scope of our services engagement with you is expressly limited to the services indicated in a signed Quote (the “Services”). All other services and projects are out of scope (“Out of Scope Services”) and will not be provided unless we expressly agree to do so in writing. You are responsible for reading these Terms of Service, the MSA, and the Quote, before accepting a Quote. If you have any questions or concerns about any of the terms, contact us before signing a Quote.

Promotional, informational, and marketing materials displayed at or through our website or on our social media pages, as well as any marketing brochures, mailers, or similar materials, or lists of available services contained in any document or media other than a Quote, are provided to you for illustrative or educational purposes only and are not intended (and will not be interpreted as) creating additional duties, requirements, service levels, or promises or guarantees of specific services or specific service results.

2. Versions. Each Quote will be governed under the version of the Terms of Service in effect at the time the Quote is executed, according to the “Last Updated” date indicated at the bottom of this document. You should print and keep a copy of the Terms of Service in effect when you accept a Quote.
3. Conflicts. In the event of a true conflict between the language in any of the documents, order of control shall be: 
   1. Quote (which includes a quote or service-specific agreement)
   2. Privacy Policy
   3. MSA
   4. Terms of Service
4. Third Party Providers/Services.  Some services may be provided to you directly by our personnel, such as situations in which our personnel install software agents on managed devices or physically install equipment at your premises. These services are distinguishable from services that are provided to you or us by third party providers, who are often referred to in the industry as “upstream providers.” In this Agreement, we refer to upstream providers as “Third Party Providers” and the services that are provided by Third Party Providers are referred to as “Third Party Services”. By way of example, Third Party Services may include help desk services, malware detection and remediation services, firewall and endpoint security-related services, backup and disaster recovery solutions, and the provision of software used to monitor the managed part of your network, among others. As your managed IT provider, we will select the Third Party Providers that provide services appropriate for your managed IT environment (the “Environment”) and facilitate the provision of Third Party Services to you. Not all Third Party Services will be expressly identified as being provided by a Third Party Provider, and we reserve the right to change Third Party Providers and Third Party Services in our sole discretion as long as the change does not materially diminish the Services that we are obligated to provide or facilitate under a Quote.
5. Reseller. We are resellers and/or facilitators of the Third Party Services and do not provide those services to you directly. For this reason, you agree that we are not and cannot be responsible for any act, omission, defect, or failure of any Third Party Service or any failure of any Third Party Provider to provide its services to you or to us. Third Party Services are provided on an “as is” basis only. If an issue requiring remediation arises with a Third Party Service, then we will endeavor to provide a reasonable workaround or, if available, a “temporary fix” for the situation; however, we do not warrant or guarantee that any particular workaround or fix will be available or achieve any particular result, or that Third Party Services will run in an uninterrupted or error-free manner. Further, you agree to be bound by the terms of service or agreement terms and policies of applicable Third Party Providers and Third Party Services.
6. End User Agreements. Portions of the Services may require you to accept the terms of one or more third party end user license agreements (“EULA”), third party customer agreements, and/or third party subscription agreements (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required for you to receive any Services, then you hereby grant us permission, and designate us as your attorney-in-fact, to accept the applicable agreement(s) on your behalf. You may request a list of all End User Agreements into which we have entered on your behalf by sending your written request to us (email is sufficient for this purpose). If an End User Agreement deviates materially from industry-standards (i.e., contains terms that are different than those generally offered by similarly situated companies to end users on an industry-wide basis), then we will bring that situation to your attention. End User Agreements may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree to be bound by the terms of all applicable End User Agreements. If, while providing the Services, you or we are required to comply with an End User Agreement and that agreement is modified or amended, we reserve the right, but not the obligation, to modify or amend any applicable Quote with you to ensure your and our continued compliance with the terms of the applicable End User Agreement.
7. Virtual Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware, rootkits, or other technology that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. We do not warrant or guarantee that any security-related product or solution implemented or facilitated by us will be capable of being detecting, avoiding, quarantining or removing all malicious code, spyware, malware, or other activities commonly known as “hacking,” “phishing,” or “spamming,” etc., or that any data deleted, corrupted, or encrypted by any of the foregoing (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a Quote, the recovery of Impacted Data is Out of Scope. Moreover, unless expressly stated in a Quote, we will not be responsible for activating multifactor authentication in any application in or connected to the Environment. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email).
8. Physical Security. You agree to implement and maintain reasonable physical security for all managed hardware and related Devices in your physical possession or control. Such security measures must include, at a minimum: (i) physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment, (ii) an alarm system to mitigate and/or prevent unauthorized access to the premises at which the protected equipment is located, (iii) fire detection and retardant systems, (iv) periodic reviews of personnel access rights to ensure that access policies are being enforced, and to help ensure that all access rights are correct and promptly updated, and (v) policies prohibiting personnel from leaving Devices unattended in plain sight of the public, e.g. in cars, restaurants, airports, etc.
9. Updates. Patches and updates to hardware and software (“Updates”) are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If Updates are provided to you as part of the Services, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, (iii) we will not be responsible for the remediation of any Device or software that is rendered inoperable or non-functional due to the Update, and (iv) we reserve the right, but not the obligations, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.
10. Access Licensing. One or more of the Services may require us to purchase certain “per seat” or “per device” licenses (often called “Access Licenses”) from one or more Third Party Providers. (for example only, and without limitation, Microsoft “New Commerce Experience” licenses as well as Cisco Meraki “per device” licenses are examples of Access Licenses.) Access Licenses cannot be canceled once they are purchased and often cannot be transferred to any other customer. For that reason, you understand and agree that regardless of the reason for termination of the Services, fees for Access Licenses are non-mitigatable and you are required to pay for all applicable Access Licenses in full for the entire term of those licenses. Provided that you have paid for the Access Licenses in full, you will be permitted to use those licenses until they expire.
11. Data & Service Access. Some of the Services may be provided by Third Party Providers outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply. You further agree that if you object to the use of your data as needed for the provision of the Services hereunder, then we will not be able to provide the Services to you, and upon signing this Agreement you are still responsible for all of your monetary obligations under this Agreement.
12. Unless otherwise expressly stated in a Quote, the Services are not intended, and will not be used, to bring Client into regulatory compliance with any rule, regulation, or requirement that may be applicable to Client’s business or operations, nor does any aspect of the Services constitute legal, medical, psychological, financial, economic, or business advice, and shall not be construed as or relied upon as such. Depending on the Services provided, the Services may aid Client’s efforts to fulfill regulatory compliance; however, unless otherwise explicitly stated in the Quote, the Services are not (and should not be used as) a compliance solution. Client is responsible for obtaining its own legal representation related to any of Client’s industry, regulatory, and/or statutory-related requirements. Client is advised to consult its own legal resources before relying on any advice or recommendations made by Company that pertain to or impact applicable Laws. Client acknowledges and understands that subsequent changes to any Law may render a plan or Service obsolete, and Company shall not be liable therefor.
13. Completion of Forms. If we assist in the preparation or completion of any insurance-related, government-requirement, or other forms, questionnaires, or similar third party documentation, you understand and agree that our responses are based on our knowledge of your managed IT Environment as of the date of those responses. To the extent that your managed IT Environment has been modified by you or any third party without our knowledge or involvement, and/or to the extent that you have failed to implement, circumvented, or otherwise disabled any features or functions of any of the Services we provide or facilitate for you (collectively, “Unauthorized Activity”), our responses may be incorrect, moot, or obsolete and shall not be relied upon. You agree to indemnify, defend, and hold harmless Company and its Related Parties from and against any Claims that we incur because of any Unauthorized Activity, or because of the inaccuracy, mootness, or obsoleteness of any of our responses arising from or relating to Unauthorized Activity.

IMPLEMENTATION.

1. Advice; Instructions. From time to time, we may offer you specific advice and directions related to the Services (“Advice”). For example, our Advice may include increasing server or hard drive capacity, increasing CPU power, replacing obsolete equipment, or requesting that you refrain from engaging in acts that disrupt the Environment or that make the Environment less secure. You are strongly advised to promptly follow our Advice which, depending on the situation, may require you to make additional purchases or investments in the Environment at your sole cost. We are not responsible for any problems or issues (for example, without limitation, downtime or security-related issues) caused by your failure to promptly follow our Advice. If, in our reasonable discretion, your failure to follow our Advice makes part or all of the Services economically or technically unreasonable or impracticable to provide or facilitate, then we may terminate the applicable Services for Default (defined below in Term; Termination) by providing notice of termination to you or, alternatively, we may adjust the scope of the Quote to exclude any impacted or affected portion of the Environment. Unless specifically and expressly stated in writing by us (such as in a Quote), any services required to remediate issues caused by your failure to follow our Advice, or your unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements (defined below), are Out of Scope Services.
2. Co-Management. In co-managed situations (e.g., where you have designated other vendors or personnel, or “Co-Managed Providers,” to provide you with services that overlap or conflict with the Services provided or facilitated by us), we will endeavor to implement the Services in an efficient and effective manner; however, (a) we will not be responsible for the act, omission, defect, or failure of Co-Managed Providers, or the remediation of any problems, errors, or downtime associated with such acts, omissions, defects, or failures, and (b) in the event that a Co-Managed Provider’s determination on an issue differs from our position on a Service-related matter, we may yield to the Co-Managed Provider’s determination and bring that situation to your attention, and if we yield to them, you agree to indemnify, defend, and hold Company and its Related Parties harmless from and against any Claims (on the terms set forth in the Indemnification section of these Terms of Service) arising out of or relating to the Co-Managed Provider’s determination and/or the results thereof.
3. Prioritization. All Services will be implemented and/or facilitated (as applicable) on a schedule, and in a prioritized manner, as we determine reasonable and necessary. Exact commencement/start dates may vary or deviate from the dates we state to you depending on the Services being provided and the extent to which prerequisites (if any), such as transition or onboarding activities, must be completed.
4. Modifications. To avoid a delay or negative impact on the Services, we strongly recommend that you refrain from modifying or moving the Environment, or installing software in the Environment, unless we expressly authorize such activity. In all situations (including those in which we are co-managing an Environment with your Co-Managed Providers as described above), we will not be responsible for changes to the Environment that are not authorized by us or any issues or errors that arise from those changes.
5. Changes to User Accounts. Requests for non-hardware related changes to any user account must be made at least seven (7) days in advance of the commencement date of those changes. Changes involving hardware may require additional periods of time to implement; please speak to your technician for details. If requests are made within these timeframes, we will provide services on a best effort basis.
6. OEM Fees. If, in our discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs involved in that process (“OEM Fees”). If OEM Fees are anticipated in advance, we will endeavor to obtain your permission before incurring such expenses on your behalf unless exigent circumstances require us to act otherwise. We do not warrant or guarantee that the payment of OEM Fees will resolve any particular problem or issue, it being understood that the resolution process can sometimes require the payment of OEM Fees to narrow (or potentially eliminate) potential issues.
7. Conflicts; Service Tickets. Given the vast number of interactions between hardware, software, wireless, and cloud-based solutions, a managed network may occasionally experience disruptions and/or downtime due to, among other things, hardware/software conflicts, communication-related issues, obsolete equipment, and/or user error (“Conflicts”). We cannot and do not guarantee that such Conflicts will not occur, and you understand and agree that the number of service tickets or inquiries submitted by you is not, by itself, an indication of Default by Company. Company will prioritize the service tickets and inquiries from its various clients in an order determined by Company, which may not necessarily be in the order received and may be based on, among other things, the severity or urgency of each situation, as determined by Company based on the information it has. Company shall not be liable for prioritizing another client’s service ticket or inquiry.
8. Authorized Contacts. We will be entitled to rely on any directions or consent provided by your personnel or representatives who you designate to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable Quote or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the Quote, and/or (ii) who is generally designated by you during our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of a change of status of the Authorized Contact, by a person with authority to make such change. If your change is provided to us in writing (physical document or by email), then the change will be implemented within two (2) business days after the first business day on which we receive your change notice. If your change notice is provided to us in person or by telephone (live calls only), the change will be implemented on the same business day in which the conversation takes place. Do not use a ticketing system or help desk request to notify us about the change of an Authorized Contact; similarly, do not leave a recorded message for us informing us of a change to your Authorized Contact. We reserve the right but not the obligation to delay the Services until we can confirm the Authorized Contact’s authority within your organization. See also the Authority of Signatories section of these Terms of Service.
9. Access. You hereby grant to us and our designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us or those providers, as applicable, to provide the Services. Depending on the Service, we may be required to install one or more software agents into the Environment through which such access may be enabled. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including, without limitation, software licenses), permits or other permissions necessary for us or applicable Third Party Providers to provide the Services to you. Proper and safe Environment conditions must be always provided and assured by you. We shall not be required to engage in any activity or provide any Service under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.
10. You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in writing by us, Devices managed under a Quote will not receive or benefit from the Services while the devices are powered off, detached from, or unconnected to, the Environment. Client is strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.
11. Ongoing Requirements. Everything in the managed Environment must be genuine and licensed, including all hardware, software, etc. If we ask for proof of authenticity and/or licensing, you must provide us with such proof, and we may suspend Services until it is provided. If we require certain minimum hardware or software requirements (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements as an ongoing requirement of us providing the Services to you.
12. Response. Our response to issues relating to the Services will be handled in accordance with the provisions of the Quote. In no event will we be responsible for delays in our response or our provision of Services during (i) those periods of time covered under the Transition Exception (defined below), or (ii) periods of delay caused by Scheduled Down Time, Client-Side Downtime, Vendor-Side Downtime (all defined below), or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a Force Majeure event.
    1. Scheduled Downtime. Scheduled Downtime means those hours, as determined by us, during which we perform scheduled maintenance or adjustments to the Environment; provided that such Scheduled Downtime shall not be scheduled between 8:00 a.m. and 5:00 p.m. Eastern Time, Monday through Friday, unless authorized by you in advance or necessitated by exigent circumstances. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to any changes to regularly Scheduled Downtime. We may alter the Scheduled Downtime hours in our sole discretion.
    2. Client-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions (“Client-Side Downtime”). Client-Side Downtime includes, but is not limited to, any period of time during which we require your participation, or we require information, directions, or authorization from you but cannot reach your Authorized Contact(s).
    3. Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Third Party Providers, Third Party Services, third party Licensors, or “upstream” service or product vendors.
    4. Transition Exception. You acknowledge and agree that for the first forty-five (45) days following the commencement date of any Service, as well as any period of time during which we are performing off-boarding-related services (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), the response time commitments provided to you will not apply to us, it being understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

ARTIFICIAL INTELLIGENCE SUPPORT & COMPLIANCE.

1. Definitions specific to this section:

“Approved AI Platforms” means artificial intelligence (“AI”) tools and platforms expressly approved in writing by Client’s authorized representative(s) for use in Client’s Environment.

“Unauthorized AI Services” means any AI tools or platforms not included within Approved AI Platforms, including, without limitation, public or consumer AI services that have not been approved in writing by Client.

“HIPAA” means the Health Insurance Portability and Accountability Act.

“HITECH” means the Health Information Technology for Economic and Clinical Health Act.

“BAA” means a Business Associate Agreement between the parties under HIPAA and/or between Client and any third party AI vendor, if and as applicable.

2. Purpose and Scope of This Section. For the support of: (i) Client-approved artificial intelligence (“AI”) platforms, (ii) monitoring and reporting of AI-related access and activity signals, (iii) network-level controls intended to reduce access to unauthorized AI services, to the extent technically feasible, and (iv) alignment with Client’s internal AI usage policies and procedures: Client understands, acknowledges, and agrees that Company provides technical Services only. Company does not provide legal, medical, clinical, financial, business, or compliance determinations related to AI usage, including, without limitation, determinations regarding whether information constitutes, for example, Protected Health Information (“PHI”) under the HIPAA, or whether a breach occurred under HIPAA or HITECH, or what discipline is appropriate for any workforce member.
3. Client Responsibilities. Client retains sole responsibility for:
   1. Establishing, approving, updating, and enforcing its own AI usage policies and procedures, including, without limitation, determining which AI uses are permitted or prohibited for Client’s workforce;
   2. Determining what constitutes PHI or other legally implicated data and information;
   3. All regulatory compliance required of Client, and all determinations, including, without limitation, legal or regulatory breach and violation determinations, and notification obligations;
   4. Workforce training, acknowledgments, supervisions, and application of discipline in accordance with Client’s human resources policies and applicable employment Laws;
   5. Approval or denial of AI platform usage requests, and designation of individuals/roles authorized to request provisioning, changes, or deprovisioning of access;
   6. Ensuring that any required BAAs and other legal or contractual prerequisites are in place before authorizing any AI platform for use with PHI or other sensitive or legally implicated data or information. For example only, and without limitation, Client will not authorize use of Microsoft Copilot (or any similar AI service) for PHI until applicable BAA is obtained and documented in writing.
   7. Client acknowledges, understands, and agrees that no technical controls can fully eliminate the risk of policy or legal violations.
4. Company Responsibilities. Upon Client’s request and authorization, and if provided in a Quote, Company will:
   1. Provision and deprovision Client user access for Approved AI Platforms and provide technical support for Approved AI Platforms within the Scope of the Agreement;
   2. Provide technical monitoring and reporting related to AI access and activity signals (for example, without limitation, access logs, security events, and other technical indicators) to Client’s designated representative(s) or compliance contact(s);
   3. Implement work-level controls intended to block known Unauthorized AI Platforms to the extent technically feasible, supplemented by monitoring and Client policy enforcement. Client acknowledges, understands, and agrees that AI services and domains change frequently and that technical controls may not prevent all access in all circumstances;
   4. Participate in periodic security reviews related to AI platform access.
5. Company Rights and Limitations:
   1. Company shall not be deemed a compliance resource or authority for Client’s AI usage. Client is responsible for consulting legal counsel and compliance professionals;
   2. Company does not warrant or guarantee prevention of all unauthorized AI access, and does not warrant or guarantee the legal compliance, data retention practices, security certifications, performance, or availability of Client’s vendors or Company’s Third Party Providers;
   3. Company shall not be liable for any Client workforce behavior.
6. Incident Response and Reporting. If Company becomes aware of suspected unauthorized AI use involving Client’s systems or suspected security incidents relating to AI access, Company will notify Client promptly upon discovery, using incident reporting contacts designated by Client. Client is solely responsible for investigation, remediation, required reporting and other legal obligations associated with unauthorized AI use or data breaches.
7. Indemnification. Client, on behalf of itself and its Related Parties shall indemnify, defend, and hold harmless Company and its Related Parties from and against any and all Claims arising out of or relating to:
   1. Client workforce misuse of AI tools;
   2. Policy violations by Client Related Parties;
   3. Regulatory penalties resulting from the decisions, acts, or omissions of Client or its Related Party;
   4. Any use of AI tools outside of approved scope, except for technical actions within Company’s scope;

all in accordance with the Indemnification section of this Agreement.

8. Reliance on Third Party Vendor Claims. To the extent any documentation provided to Client by its vendors reference security, data retention, “government grade” security, processing, or similar claims, such references are based on vendor attestations, documentation, and contractual agreements (including BAAs, if applicable). Company does not independently audit or verify Client’s third party vendor claims unless the parties expressly agree in writing to a separate audit/verification scope in a Quote.
9. Policy Interpretation. All interpretations of Client’s internal AI usage policy and related procedures rest with Client’s compliance representative(s) (or equivalent) in consultation with Client’s legal counsel and any internal IT leadership. Company may provide technical input when requested but does not make, and is not responsible for, compliance determinations. 

FEES; PAYMENT.

1. Fees. Client agrees to pay the fees, costs, and expenses charged by us, in accordance with the amounts, methods, restrictions, and schedules described in each Quote (“Fees”), upon receipt or by the due date on the invoice. Recurring services may be invoiced in advance. Client is responsible for all applicable taxes arising from or relating to the Services, and for Products unless a resale certificate is provided to us prior to placing an order for Products. Company reserves the right to charge for time utilized in the development of quotes for hardware or software not ultimately purchased through Company, at the then-current hourly rate for contracted clients.
   1. For hourly billed Services, billing is in fifteen (15) minute increments. For non-business hours, there is a one half hour minimum charge for on-site, and 15 minutes minimum for remote. 
   2. For a la cart Services, there are Trip Charges (charges for sending a technician on-site), which will be stated in a Quote.
   3. For flat fee Services, there are no Trip Charges unless specified in a Quote.

Typically, our Service fees are charged monthly, unless otherwise specified in a Quote. In addition to the Fees, you are responsible for any miscellaneous costs and expenses (not to exceed $250/month without your prior consent) that we incur in providing or facilitating the Services to you (“Miscellaneous Expenses”). Miscellaneous Expenses will generally appear as a line item entry on your invoice(s) and may include, for example, small device purchases (such as a UPS), delivery/postal/courier costs, data migration tools, and registration/service initiation fees or other fees charged by Third Party Providers. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption. You are also responsible for all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). Returned check service charges apply. You must report suspected billing errors within thirty (30) days of receiving the invoice. No refunds/credits for charges older than thirty (30) days. For billing inquiries: PowerOne Customer Service (352)-253-2200.

2. Non-Payment. Payment is late ten (10) days past when due, and Fees that remain unpaid for more than thirty (30) days when due will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lesser of one and one half percent (1.5%) per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely paid. Re-engagement charges will apply. Acceptance of partial payment, even if marked “paid in full,” is not a waiver of the remaining balance. Monthly or recurring charges (if applicable) will continue to accrue during any period of suspension. Notice of disputes related to fees must be received by us within thirty (30) days after the later of: (1) the applicable Service is rendered or (2) the date on which you receive an invoice; otherwise, you waive your right to dispute the fee thereafter. We reserve the right suspend or disconnect your Services for non-payment and to charge a reasonable reconnect fee (of no more than 10% of your monthly recurring fees) if we suspend your Services due to your nonpayment, and you agree we are not liable for any financial or other consequences to you for such suspension or disconnection of Services, nor in any delay of transfer time as a result of suspension or disconnection. During any period of non-payment, we are not required to provide permission to transfer phone service, any PIN number, or similar information, access, or assistance. Partial payment shall not constitute payment in full even if accompanied by “Payment in Full” or similar language. Client shall pay collection/repossession costs, including without limitation, attorney’s fees.
3. Minimum Monthly Fees. The initial Fees indicated in Quote for recurring services are the minimum monthly fees (“MMF”) that will be charged to you during the term. You agree that the amounts paid by you under the Quote will not drop below the MMF regardless of the number of users or devices to which the Services are directed or applied, unless we agree to the reduction. All modifications to the amount of hardware, devices, or authorized users under the Quote (as applicable) must be in writing and accepted by both parties.
4. Standard Increases. We reserve the right to increase our monthly recurring fees by reflecting the increase on your monthly invoices, for example, without limitation, if the Environment materially changes, if you add more users, devices, workstations, servers, or network elements using the Services, if your level of support requirements change. In addition to the foregoing increases, PowerOne reserves the right, and anticipates its rates will increase annually, modestly unless costs and expenses significantly increase. Unless a Quote provides for fixed rates, or guarantees no changes in rates, Client is responsible for payment at the then-current rates. Pass-Through Increases, described in (E) below, are independent of any increases to our monthly recurring fees.
5. Pass-Through Increases. We reserve the right to pass through to you any increases in the costs and/or fees charged by Third Party Providers for the Third Party Services (“Pass Through Increases”), even if your Quote shows a different cost. Since we do not control Third Party Providers, we cannot predict whether such price increases will occur, however, should they occur, we will endeavor to provide you with as much advance notice as reasonably possible.
6. Schedule of Payments. We reserve the option to require automatic payment for all invoiced fees via ACH or by your credit card number that we keep on file. If you authorize payment by credit card and ACH, then the ACH payment method will be attempted first. If that attempt fails for any reason, then we will process payment using your designated credit card.
   1. When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account for any payments due under the Quote. This authorization will continue until otherwise terminated in writing by you. We will apply a $50.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.
   2. When enrolled in a credit card payment processing method, you authorize us to charge your credit card, as designated by you in our payment portal, for any payments due under the Quote. For each credit card transaction, where permitted by law, we reserve the right to add a convenience fee to the applicable invoice which will not exceed the actual costs we incur to accept your credit card.
7. Expenses. Any costs or expenses that we incur while providing the Services during a national, state, or local emergency or during a period in which there are fuel, manpower, or other national or local shortages (“State of Emergency”) will be invoiced and payable by you. By way of example, without limitation, such expenses may include incremental increases in the cost of gasoline or electrical power, or the purchase of health or safety equipment reasonably necessary to provide the Services to you.
8. Payment for Product Sales. Additional terms pertaining to the sale of products are found in the Product Sales section below. The foregoing terms and provisions which can be applicable to Produce Sales are also applicable.

PRODUCT SALES.

1. Applicability. This section, Product Sales, applies solely to the sale, resale, delivery, or provision of hardware, equipment, peripherals, accessories, or other tangible licensed products (“Products”) by Company. Product sales may be included in a Quote.
2. Risk of Loss. All sales are F.O.B. shipping point.
3. Payment. Client shall pay the full price indicated on the invoice, including the purchase price, freight, taxes, start-up/setup fees (non-refundable), recurring usage, and any other applicable charges, upon receipt of the invoice. Sales tax exemption requires Client to provide a resale certificate prior to ordering.
4. Title; Security Interest. Until full payment for the Products is received by Company (including, without limitation, purchase price, freight, taxes), Company retains a purchase-money security interest in the Products. Company may file this Agreement, a financing statement, or other required or reasonable documentation to perfect its security interest. Title passes to Client only upon full payment.
5. Acceptance. Immediately upon delivery, Client shall inspect the Products for general functionality and absence of damage. Client shall notify Company in writing of any damage or defect within ten (10) business days of receipt of delivery. Failure to notify Company of any damage or defect shall constitute acceptance.
6. Cancellation and Returns. Orders may be cancelled only with Company’s written consent and payment of reasonable cancellation charges. Returns require prior written authorization. Client is charged for placing Products in saleable condition, sales expenses, a twenty-five percent (25%) restocking fee, and all transportation costs (inbound/outbound). Used/opened products may be declined for return in the absence of defect.
7. Warranty. Products are only warranted by the manufacturer, not Company, and warranties may exclude accidents, user negligence, tampering, alteration, abuse/misuse, or damage from using incompatible parts or components. Company makes no warranties regarding merchantability, fitness for a particular purpose, functionality, or any other warranty. 

LIMITED WARRANITES.

1. Hardware/Software Purchases. All equipment, machines, hardware, software, peripherals, or accessories purchased through us (“Third Party Products”) are generally nonrefundable once the item is obtained from our Third Party Provider (which may be a reseller). If you desire to return a Third Party Product, then the Third Party Provider’s return policies will apply. We do not guarantee that Third Party Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided, and you agree to be responsible for paying all re-stocking or return-related fees charged by the Third Party Provider. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality, or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime, or usefulness of any Third Party Products. You will be responsible for all fees and costs (if any) charged for warranty-related service. All Third Party Products are provided “as is” and without any warranty whatsoever as between Company and you (including but not limited to implied warranties).
2. Services. Company warrants for a period of thirty (30) days following delivery (“Warranty Period”) that all Services shall be performed in a professional manner in accordance with generally applicable industry standards. Company’s sole liability (and Client’s exclusive remedy) for any breach of this warranty shall be for Company to re-perform any deficient Services, or if Company is unable to remedy such deficiency within thirty (30) days, to void the invoice, or portion of invoice, for the deficient Services. Company shall have no obligation with respect to a warranty claim (i) if notified of such claim after the Warranty Period, or (ii) if the claim is the result of third party hardware or software failure, or the act or omission of Client or a third party.
3. THIS SECTION IS A LIMITED WARRANTY AND SETS FORTH THE ONLY WARRANTIES MADE BY COMPANY. COMPANY MAKES NO OTHER WARRANTIES, CONDITIONS, OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE. TO THE FULLEST EXTENT OF THE LAW, THE DURATION OF ANY STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED OT THE WARRANTY PERIOD.

LIMITATIONS ON LIABILITY; FORCE MAJEURE.

1. Limitations on Liability. This paragraph limits our liabilities arising from the Services and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that Company would not provide any Services, or enter into this Agreement, unless Company could rely on the limitations described in this paragraph. In no event will Company be liable to Client for any indirect, special, exemplary, consequential, or punitive damages, nor for lost revenue, loss of profits, savings, disruption of services, loss of business, or other indirect or contingent, event-based economic loss arising out of or in connection with the Services, this Agreement, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement, whether under theory of contract, warranty, tort, strict liability, or otherwise, even if Company has been advised of the possibility of such damages. Under no circumstances shall Company be responsible for problems that occur arising out of or relating to third party hardware or software. Company’s aggregate liability to Client for damages from any and all Claims from any cause whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement, whether in contract, indemnification, negligence or other tort, shall be limited solely to the amount of the Client’s actual and direct damages, not to exceed the amount of fees paid by Client (excluding hard costs for licenses, hardware, etc.) to Company for the specific Service upon which the applicable Claim(s) is/are based during the three (3) month period immediately prior to the date on which the cause of action accrued or Ten Thousand Dollars ($10,000.00), whichever is less. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose. Similarly, Company’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the willful or intentional misconduct or gross negligence of Client or its Related Party, or to the extent that the Client failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims. Under no circumstances shall Company have any liability for any Claims arising from or related to Out of Scope Services.
2. Waiver of Liability for Admin/Root Access. We strongly suggest that you refrain from providing administrative (or “root”) access to the Environment to any party other than Company, as such access by any person other than our personnel could make the Environment susceptible to serious security and operational issues caused by, among other things, human error, hardware/software incompatibility, malware/virus attacks, and related occurrences. If you request or require us to provide any non-Company personnel (i.e., non-Company employees, such as in a co-managed situation) with administrative or “root” access to any portion of the Environment, or if you otherwise provide any other person or party with administrative or “root” access to any portion of the Environment, then you hereby agree to indemnify and hold harmless Company and its Related Parties from and against any and all Environment-related issues, downtime, exploitations, and/or vulnerabilities, as well as any Claims arising from or related to any activities that occur, may occur, or were likely to have occurred in or through the Environment at an administrative or root level, as well as any issues, downtime, exploitations, vulnerabilities, or Claims that can reasonably be traced back or connected to activities occurring at the administrative or root level (“Activities”) in the Environment, if the Activities were not performed or authorized in writing by Company. Company’s business records shall be final and determinative proof of whether any Activities were performed or authorized in writing by Company.
3. Waiver of Liability for Legacy Devices. As used herein, “Legacy Device” means a piece of equipment, device, hardware, or software that is outdated, obsolete, incompatible with industry-standards, and/or no longer supported by its original manufacturer. Legacy Devices may cause vulnerabilities in your network, or they may fail from time to time or cause other parts or processes of the Environment to operate improperly or (in some cases) fail. If a Legacy Device must remain in the Environment, or if we agree to allow a Legacy Device to operate within the Environment, or if you decline to promptly replace a Legacy Device when we request you to do so, then you understand and agree that (i) neither we nor any Third Party Provider will be responsible for damage or remediation of issues arising from or related to the existence or use of the Legacy Device in the Environment, and (ii) we and Third Party Providers will be held harmless from and against all Claims arising from or related to the existence or use of the Legacy Device in the Environment. We strongly advise you to review your company’s insurance policies to determine the extent to which the existence of Legacy Devices in the Environment would create an exclusion of insurance coverage in the event of a security-related incident.
4. Force Majeure. Neither Company nor its Business Relations shall be liable for any failure of, or delay in, the performance of its obligations due to events (or the effects of events) beyond its reasonable control, whether foreseeable or not, to the extent such events are not the fault of the person or entity claiming Force Majeure, including but not limited to: delays in transportation, couriers, carriers, customs, ports, or the like; interference by any third party; shortage of materials; equipment breakdown; strike; lockout; work stoppage; labor dispute; utility outage; fire; explosion; flood; earthquake; tornado; hurricane; acts of a public enemy (for example and without limitation, active shooter, bomb, terrorism, or threats of same); public mischief, political unrest; protest; pandemic disease outbreak; local disease outbreak; act of God; any other natural disaster or third party disaster; trade sanction; embargo; act of war; sabotage; cyberattack, cyber ransom, malware, or other digital attack; insurrection; eminent domain; government required quarantine; blockade; mutiny; condition caused by national emergency or state of emergency declared by applicable jurisdiction; government or quasi-government complete or partial shutdown; new or changed judicial, executive, legislative, administrative, or other Law, rule, order, or government or quasi-government act; or any other act or cause beyond the reasonable control of such party. The running of all periods of time mentioned in this Agreement and the performance of all obligations required herein shall be suspended during the continuance of such interruption, and the person or entity that is prevented from performing its obligations shall promptly notify the Client of such interruption. No liability shall be incurred by Company or its Business Relations for damages resulting from such suspension.

COMPLIANCE WITH LAWS. 

Client shall comply with all local, state, federal, and international laws, rules, regulations, ordinances, codes, treaties, judicial and other government orders, insurance requirements, and license and permit requirements (collectively, “Laws”) applicable to it and the conduct of its business and activities.

Client warrants and represents that it knows of no Law governing its business, or third party right, or other contract obligation on Client’s part, that would impede or restrict Company’s provision of the Services, or that would require Client to register with, or report its receipt the Services (or the results thereof), to any government, regulatory authority, or other third party. Client agrees to promptly notify Company if Client becomes subject to any of the foregoing which, in Company’s sole discretion, may require a modification to the scope or pricing of a Quote. Similarly, if Client is subject to responsibilities under any applicable privacy Law (such as HIPAA), or any other Law that may require Company’s cooperation, then Client shall identify to Company any data or information subject to protection under that Law prior to providing such information to Company or, as applicable, prior to giving Company access to such information, and to provide Company with any other data or information it may need in order to provide any required cooperation.

RESTRICTIVE COVENANTS.

1. Confidentiality. “Confidential Information” shall mean, individually or collectively, past, present, or prospective, information of any kind, nature, or description concerning: the contents of any arbitration records or settlement agreements or negotiations; any templates, schematics, processes, or technical documentation provided to Client by Company (which may only be used for Client’s internal purposes consistent with the purposes of this Agreement); any and all information required by Law to be kept confidential by either party; any matter affecting or relating to the other’s business or activities, including without limitation (and to be broadly construed in favor of the party that is the owner of the information) all intellectual property of any and every kind which is owned or licensed by a party and that is in development or practice and is not publicly registered, published, sold, distributed, or otherwise publicly available; along with all technical, scientific, financial, financial investment, operational, personnel, sales, marketing, managerial, statistical, research, and business information of any kind whatsoever including, where appropriate and without limitation, all data, work product, compilations, pricing and price lists, costs, earnings, income and splits, member or prospective member lists or personal information thereof, customer or participant lists, customer or participant information (including without limitation personal data and personally identifying information), blueprints, product lists, service lists, potential products or services in discussion or research or development, plans, audio and/or video recordings and/or devices, information in any medium or format, handwritten documents, specifications, systems, schemas, methods (including delivery, storage, receipt, transmission, presentation and manufacture of audio, video, informational or other data or content), strategies, business and marketing development plans and agreements, supply plans and agreements, templates, forms, research projections, processes, techniques, designs, sequences, components, programs, technology, ideas, know-how, improvements, inventions (whether or not patentable), information about operations and maintenance, trade secrets, formulae, models, patent disclosures, information regarding the skills or compensation of the other party’s Business Relations, information concerning the actual or anticipated business, research, or development of the other party, or its actual or potential Business Relations, information which is or has been generated or received in confidence by or for the other party, by or from any person, and any and all tangible and intangible embodiments thereof of any kind whatsoever including, where appropriate and without limitation, all compositions, machinery, apparatus, records, reports, drawings, copyright applications, patent applications, documents and samples, prototypes, models, products and the like; along with any third party information that the party is required to keep confidential; along with the content of any dispute resolution procedure, negotiation, settlement, or other outcome, involving all the parties named to this Agreement, which is not by law already public; information labeled “Confidential, “Proprietary,” or the like, or which a party reasonably believes or should know is intended to be confidential, all whether disclosed to or obtained by a party or its Related Parties, on or after the date of this Agreement, and all whether developed by a party, its Related Party, or a third party.

Notwithstanding the foregoing, Confidential Information does not include: (vi) any of the foregoing which enters, or has entered, the public domain through no breach of this Agreement, nor through breach of any other confidentiality obligation or agreement, (vii) information which is approved in writing by the other party to be released, or (viii) information which is required by law, judicial order, or other government requirement to be released (including, for example only, any agreement or other document required to be submitted to a government authority in order to obtain necessary permits, authorizations, or licenses for the operation of a party’s business), but only to the extent so required, and with prompt written notice to the other party of such requirement, so that it has a timely opportunity to contest the required release of such Confidential Information.

Each party and its Related Parties shall not directly or indirectly disclose to any unauthorized person, firm, corporation, or other entity, or use for his own account or benefit, nor for the use or benefit of any other person, form, corporation, or entity, during the Term or for as long as the Law allows thereafter, and in any event not less than two (2) years after the expiration or termination of this Agreement, any Confidential Information of the other party, without the written consent of the other party. Each party shall take reasonable and appropriate steps to safeguard Confidential Information in its possession or control, to protect it against disclosure, release, misuse, espionage, loss, and theft, using the higher of (i) the standard of care the party uses to protect its own Confidential Information, or (ii) the industry standard for protection of Confidential Information, and shall ensure its Related Parties do the same.

A party may disclose Confidential Information if permitted by Law: (i) during the course and scope of the performance of this Agreement to persons, firms, or companies that have a direct and legitimate business related need to know such Confidential Information (in which case the party which is now disclosing the other party’s Confidential Information shall take reasonable steps to ensure other parties receiving the Confidential Information under this provision do not further disseminate the information; such steps may include, but are not limited to, requiring the third party to sign a confidentiality agreement).

Each party acknowledges and agrees that any unauthorized disclosure or use of Confidential Information would cause the owning party imminent irreparable injury and that the owning party shall have the right but not the obligation, in addition to any other remedies available at law or in equity, to seek temporary, preliminary, and permanent injunctive relief to mitigate ongoing breach of this section, Confidentiality, or accumulation of damages resulting from such breach.

Term of Confidentiality: Perpetually for as long as the Law allows or requires, but in any event not less than two (2) years from the later of: (a) the date first above written, (b) the parties’ last communication regarding any agreement or transaction between the parties, (d) the closing of any such agreement or transaction contemplated thereby.

Client acknowledges and agrees that in our provision of Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information. In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information. 

If in the normal provision of the Services we are in receipt of or otherwise have access to personal health information (as defined in the Health Insurance Portability and Accountability Act, as may be amended from time to time (“HIPAA”)), we will be your business associate as that term is defined under HIPAA and will enter into a mutually agreeable Business Associate Agreement.

2. Non-Solicitation. During the course of all Terms of this Agreement and for a period of two (2) years thereafter, Client agrees, on behalf of Client and its Principals, that they shall not, directly or indirectly, and will not encourage others to: (i) induce or attempt to induce any present, prospective, or future Business Relation to leave the employ of, or terminate its contract, affiliation, or other business relationship with the other party, (ii) hire or recruit away any present, prospective, or future Business Relation of the other party (nor any ex-Business Relation for six (6) months after their departure), (iii) induce or attempt to induce any present, prospective, or future Business Relation of the other party to cease doing business with the other party or its other Business Relations, or (iv) otherwise interfere with or undermine any of the foregoing relationships. In the event of a violation of the terms of the this Non-Solicitation section, Client acknowledges and agrees that the damages to Company would be difficult or impracticable to determine, and in such event, the Client will pay Company as liquidated damages and not as a penalty an amount of Fifty Thousand Dollars ($50,000.00) per violation, and an additional $10,000.00 for each month of continuing violation after Client’s receipt of cease and desist demand from Company. Client is responsible for ensuring its Related Parties are bound to the obligations of this paragraph. Company shall have no duty to mitigate damages. This provision shall not apply to individuals responding to a general advertisement of employment.
3. Non-Disparagement. During the Term of this Agreement and for as long as the Law allows thereafter, Client agrees, on behalf of itself and its Related Parties, that each of them respectively will not, directly or indirectly, and will not encourage others to, disparage or the other party or its Business Relations, nor its trademarks, products, services, or reputation, to the press, on social media, in online reviews, or otherwise, nor the family members of the other party or any of its Business Relations. “Disparage” shall mean making derogatory, inflammatory, unsubstantiated, or adversely opinionated, comments or statements, or “doxing” (obtaining public or private information about the person/company and disseminating it in a manner intended to cause harm of any kind). Each party is responsible for ensuring its Related Parties are bound to the obligations of this paragraph. Nothing herein shall prohibit a person or entity from making factual statements supported by evidence, provided that such facts are presented in a factual, professional, non-inflammatory manner.
4. Tolling During Breach. During any period of breach of a Restrictive Covenant, the stated restrictive term shall be tolled and extended for a period of time equivalent to the duration of the breach.

INSURANCE.

1. Requirements. As a material condition to this Agreement, Client shall maintain at all times during the Term of this Agreement and any associated Quotes the insurance policies and coverages listed below. We strongly advise you to obtain insurance exceeding the minimum coverage amounts, to ensure adequate coverage in the event of catastrophic events and/or circumstances in which your business operations may be seriously disrupted or interrupted. We also strongly advise you to maintain any other insurance policies that you or your advisors deem necessary or advisable to protect your business and equipment.
   1. Cyber insurance, with minimum coverage of at least One Million Dollars ($1,000,000.00), against cyberattacks, data loss, malware related issues, cyber-ransom, privacy-related and other security breaches, and other typical cyber insurance coverages, including at least $100,000.00 toward ransomware or cyber extortion and $500,000.00 for loss of business income from a cyber claim, as such incidents can occur even under a “best practices” scenario.
   2. Commercial General Liability (“CGL”) insurance of at least One Million Dollars ($1,000,000.00) per incident, Two Million Dollars ($2,000,000.00) aggregate. 
   3. CGL or other insurance shall include coverage or: 
      1. Technology errors & omissions 
      2. Data privacy and regulatory liability
      3. Business interruption
      4. Crime, social engineering, and financial fraud, committed by third parties
   4. Umbrella coverage of not less than $2,000,000 in excess of required primary policies.
   5. Worker’s compensation insurance in accordance with state law.
   6. Client shall use best efforts to have all policies delete any exclusions for contract liability.
   7. Client shall ensure that EVALCOR, INC. is named as an additional insured on all policies except worker’s compensation.
   8. Client shall provide Company with certificates evidencing all required insurance within ten (10) business days of the effectiveness of this Agreement, and periodically if requested by Company to ensure continuity of coverage.
   9. All insurance shall be maintained with carriers licensed to do business in the state where the Services are provided, rated Best’s A or better, and may not be modified or terminated without 30 days’ advance notice to Company.
   10. Client shall notify Company of any lapse or termination in any required insurance coverage.
   11. To the fullest extent permitted by law, Client hereby waives, and shall cause its insurers to waive, any rights of subrogation against Company and its Related Parties (as defined at the beginning of these Terms of Service) for losses covered by Client’s insurance policies.
   12. Client’s insurance policies required under this Agreement shall be primary and non‑contributory to any insurance maintained by Company, and any insurance carried by Company shall be excess and shall not contribute with Client’s coverage.

INDEMNIFICATION.

Client, on behalf of itself and its Related Parties (“Indemnifying Party) shall indemnify, defend, and hold harmless Company and its Related Parties (each, including Company (for the avoidance of doubt), an “Indemnified Party”) from and against any and all costs, expenses (including, without limitation, attorney’s fees), fines, penalties, losses, damages, claims, causes of action, lawsuits, investigations, judgments, and other legal or adverse action arising out of or relating to: (a) breach of any term or provision of this or any other agreement with any party, (b) negligence, (c) violation of Law, (d) violation of any third party right, (e) willful misconduct, (f) any claim for worker’s compensation asserted against an Indemnified Party, (g) causing property damage, system or network damage, harm to Company’s customers or clients, personal injury, or death, (h) tortious act or omission, any or all of the foregoing by Client or its Related Party; or (i) an Indemnified Party’s preparation of, participation in, and legal guidance for, responses to any demands (including, without limitation, attorney communications related to or in response to such demands), subpoenas (of any kind, including, without limitation, for materials, documents, deposition, etc.), discovery, or any other mandatory or requested involvement in, or the Indemnified Party’s defense of, any lawsuit, arbitration, mediation, investigation, or other legal process or government inquiry, unrelated to this Agreement, due to Client’s or its Related Party’s involvement (as a party, witness, or otherwise) in such dispute or legal process; or (j) any dispute arising out of or relating to the transmission of any infectious disease when Company’s Related Parties are at Client’s facilities or otherwise interact, for example, without limitation, any variant of SARS-COV-2, commonly known as “Covid,” or any other infectious disease, or (k) disputes arising out of or relating to any cyberattacks, data loss, malware related issues, cyber-ransom, privacy-related or other security breaches, and any and all other third party acts or omissions of any kind or nature whatsoever, or (l) any other provision of this Agreement that specifically provides for an Indemnified Party’s indemnification (collectively, all of the foregoing shall be included within the definition of “Claims” for purposes of this Indemnification section), all including all costs, expenses, attorney’s fees, and other actual damages of any nature, including without limitation collection fees and expenses of every kind, lost profits, economic damages, statutory damages, consequential damages, or damages of any other kind incurred by an Indemnified Party, or for which an Indemnified Party is held liable or incurs via required involvement in litigation, or in settlement of Claims, plus attorney’s fees for counsel of the Indemnified Party’s choosing, third party costs and attorney’s fees for which an Indemnified Party is held liable or incurs via settlement of Claims, and all costs and fees associated with the Indemnified Party’s defense of any such Claims at all levels of pre-litigation, litigation, settlement, trial, appeal, enforcement, and bankruptcy, all less any insurance proceeds covering same. Each party shall be permitted to have counsel of its choosing participate in the prosecution or defense of the applicable Claim. Each party shall have the sole right and option to settle any Claim for which it could be held liable.

In all instances, Client is responsible for the acts, omissions, negligence, willful misconduct, or breaches of this Agreement or any other agreement, violation of Law or third party right, by Client or caused by its Related Party, and for any and all internal disputes within Client or its affiliate, or within any contractual or other legal arrangement involving Client or its Related Party (whether independent contractor, joint venture agreement, or otherwise), or between Client or its Related Party with any third party. Notwithstanding any other term or provision of this Agreement, Company is under no circumstances liable to Client, its Related Party, or any interested person associated with Client, if Company receives conflicting or opposing demands from Client and/or its Related Party and/or interested persons associated with Client. See also the Authority of Signatories section of this Agreement.

TERM; TERMINATION; IMPACT ON FEES.

1. Initial Term. The initial term of this Agreement shall be four (4) years (“Initial Term”), unless otherwise specified in a Quote. If there are multiple active Quotes, if one Quote specifies its own Term, and the others do not, the others shall be subject to the standard four (4) year Initial Term.
2. Automatic Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term”) unless either party provides at least sixty (60) days’ prior written notice of its intent not to renew, before the end of the then-current Term. A Quote may explicitly provide for a single Term, non-renewing. Upon any termination or expiration, no further automatic renewal shall occur beyond that required to satisfy any applicable notice period.
3. Client Termination During Initial Term. During the Initial Term, Client may not terminate this Agreement or any Quote except for Company Default. If Client terminates the Agreement or any Quote prior to end of the Initial Term, without a Company Default, or if Company terminates the Agreement due to Client Default under (D) below, Customer shall be responsible for fifty percent (50%) of the fees attributable to the remaining portion of the fourth (4th) year of the Initial Term, prorated as applicable. If Customer’s termination or nonrenewal notice is late (i.e. is delivered within 60 days of the natural expiration of the then-current Term), therefore resulting in this Agreement extending into a Renewal Term in order to satisfy the sixty (60) day notice requirement, Customer shall additionally be responsible for one hundred percent (100%) of the fees due during the portion of the Renewal Term required to satisfy the 60 day notice period, plus fifty percent (50%) of the fees attributable to the remainder of that Renewal Term. (“Early Termination Fee”). The Early Termination Fee is due in full with the termination notice. Termination will not be effective until the later of (i) the date the Early Termination Fee is paid in full, or the termination date stated in the termination notice. Company Default means  Company’s failure to cure a material breach of this Agreement within thirty (30) days after receipt of Client’s written notice of default (a “Notice of Default”), which notice shall describe the default in reasonable detail, including the relevant dates, the specific breach(es), and cite the applicable provisions of this Agreement.
4. Company Termination During Initial Term. During the Initial Term, Company may terminate this Agreement or any Quote upon Client Default, or if the performance of Services becomes illegal or economically unreasonable (by objective standards, not in Company’s arbitrary determination, for example, without limitation, if third party pricing which Company relies on becomes unreasonable), Third Party Provider terms materially change, or if a Third Party Provider discontinues service. Client Default shall mean:
   1. Curable Default. Failure by Client to cure the following within ten (10) days after written notice by Company:
      1. Failure to pay any undisputed amounts when due;
      2. Failure to cooperate with Company or provide required access, information, or approvals necessary for Company to perform the Services, or interference with Company’s performance of the Services by Client, its Related Party, or others under Client’s control, i.e. if Client’s Related Party engages in any unacceptable act or behavior that unduly interferes with, or renders it impracticable, imprudent, or unreasonable for Company to continue providing Services (including, without limitation, any act or omission of dishonesty, harassment, violence, or threats thereof), or if Client or its Related Party files arbitration or lawsuit proceedings against Company or its Related Party (including if filed in violation of the arbitration requirement of this Agreement); 
      3. Violation of Client obligations relating to security, acceptable use, or data protection that does not present an immediate risk;
      4. Any other violation of this Agreement not listed below as a non-curable breach of this Agreement.
   2. Non-Curable Default. Company may terminate this Agreement or any Quote immediately upon the following occurrences by or involving Client, which Company may determine are, or are not, subject to cure:
      1. Failure to maintain required insurance, or other breach which Company deems curable in a written notice by Company.
      2. Voluntary or involuntary bankruptcy filing which continues beyond 30 days, insolvency, is appointed a receiver, dissolution, assignment for the benefit of creditors or any other workout plan with creditors, similar proceeding, or suffers an attachment against or a seizure of a substantial part of its assets, equipment or its parts and inventories. To the extent allowed by bankruptcy law, Client’s responsibility for past due amounts shall survive each bankruptcy proceeding, and Client will provide any necessary written acknowledgment of same, all provided that such liability by Client will not affect the discharge of Client regarding other general creditors;
      3. Abandonment or cessation of business operations for more than fourteen (14) consecutive days;
      4. Unauthorized assignment or transfer of this Agreement;
      5. Use of the Services for unlawful purposes;
      6. Actions or omissions that materially threaten the security, integrity, or availability of the Environment or Client systems, or which materially threaten the safety or security of Company or its personnel;
      7. Violation of Confidentiality, Non-Solicitation or Non-Disparagement sections;
      8. viii.Public misrepresentation of Company’s role;
      9. Attribution of security incidents to Company without basis;
      10. Unauthorized use of Company’s name, trademarks, or certifications; 
      11. Any act of fraud, deceit, other dishonesty, or willful misconduct, toward Company, or which affects Company’s reputation or ability to provide the Services.
   3. Company Remedies. Without limiting any other rights or remedies which may be available to Company at law or in equity, upon a Client Default, Company may:
      1. Suspend some or all Services and access credentials until overdue invoices are paid in full or the Default is cured;
      2. Seek temporary, emergency, and permanent injunctive relief, without the requirement of posting bond, for Client Defaults involving:
         1. Unauthorized access to or misuse of Company systems or intellectual property;
         2. Acts or omissions by Client or its Related Party posing imminent risk to Client or Company data or systems;
         3. Violation of Confidentiality, Non-Solicitation, or Non-Disparagement sections.
      3. Exercise any other rights or remedies available at law or in equity.
      4. Company rights and remedies are cumulative.
5. Termination After Initial Term. Following expiration of the Initial Term, either party may terminate this Agreement for convenience upon sixty (60) days’ prior written notice, or sooner upon Default as previously provided.

EFFECT OF EXPIRATION OR TERMINATION.

1. If there are multiple active Quotes, the termination of one Quote does not automatically terminate all Quotes, unless specified in the notice of termination.
2. Immediately upon the expiration or earlier termination of this Agreement, each party shall (1) return to the other party or, if requested by the owning party in writing, destroy all documents, electronic or written, and all other materials containing Confidential Information, or otherwise dispose of the Confidential Information as directed by the owning party, and (2) certify in writing to the owning party, within three (3) days of the return or destruction or other disposition of the documents and materials, that the party has returned or destroyed, as applicable, the documents and materials containing Confidential Information.
3. Upon the expiration or termination of the Agreement for any reason, Client will be responsible for the payment of all fees that accrue up to the termination date and all pre-approved, non-mitigatable expenses that we incurred in our provision of the Services through the date of expiration or termination (such as, without limitation, per seating license costs). To the extent allowed by Law, Client’s responsibility for past due amounts shall survive each bankruptcy proceeding.
4. Upon termination of this Agreement or applicable Quote for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which Company’s equipment is located to enable us to remove all Company equipment from the premises. If you fail or refuse to grant us access as described herein, or if any of the Company equipment is missing, broken or damaged, or any of Company-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of all missing or damaged items. Certain Services may require the installation of software agents in the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.
5. The information on equipment returned to us at the end of the Services will be deleted; however, we cannot and do not guarantee that deleted information will be rendered recoverable or irrecoverable under all circumstances. For that reason, we strongly recommend that you permanently delete any personal, confidential, and/or highly-sensitive information from such equipment before returning that equipment to us.
6. Company shall have no obligation to assist in transition or off-boarding if Company terminates the Agreement or applicable Quote for Client Default.
7. In the absence of Client Default, if you request our assistance to transition away from our Services, we will provide such assistance if: (i) all payments due and owing to us are paid in full, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front deposits to be paid to us as we may require. For the avoidance of doubt, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the foregoing requirements. You also understand and agree that any software configurations that we custom create or program for you, and all of the intellectual property embodied therein, are not work for hire, but are our proprietary information and shall not be disclosed to you, taken by you, or disclosed by you, under any circumstances, nor used by you for any purpose not authorized by us. Unless otherwise expressly stated in a Quote, or prohibited by applicable Law, we will have no obligation to store or maintain any Client data in our possession or control following the termination of this Agreement or the applicable Services.  You agree to cooperate and assist as requested in our assistance with transition and off-boarding.
8. Termination of this Agreement will not adversely affect any right existing as the effective date of termination.

AUTHORITY OF SIGNATORIES.

Client represents and warrants he/she is duly authorized to execute and enter into this Agreement, and if doing so on behalf of an entity, that such signatory is duly authorized to bind such entity to this Agreement. Any of Client’s internal procedures for approving the execution of agreements which are not performed prior to the execution of this Agreement are expressly waived, as the signatory has demonstrated apparent authority to execute this Agreement. We may rely on the signature and direction of the signatory or any person based on their apparent authority, until we receive written notice, accompanied by appropriate documentation which, in our sole determination, establishes there was no actual authority, or such authority has changed. If a notice of change in authority is provided in writing (physical document or email), and we determine it is appropriate, feasible, and not damaging to Company, implementation will occur within three (3) business days after the first business day on which we receive the notice. We will not be liable to Client or any of its Business Relations for any actions taken in reliance on apparent authority prior to receipt and processing of such notice and documentation, or based on our reasonable determination that a notice in change of authority is not valid (based solely on the documented information available to us) or under suspicion of fraud, deceit, or other dishonesty. We may determine in its sole discretion whether to rely on such documentation, or to question its validity. However, notwithstanding the foregoing, we are not obligated to be the judge or arbiter of disputes within a company about who has authority to enter this Agreement, manage this Agreement, or have access to relevant information and systems. In the event of such dispute, we may, in its sole discretion, elect to proceed according to its interpretation of documentation that has been provided to it, or elect to only make changes under joint instructions from the interested parties, or court order, or, notwithstanding any other provision of this Agreement regarding termination, we may terminate the Agreement for undue interference, infeasibility, impossibility, or frustration of purpose or direction, all as determined solely by us. Under no circumstances are we responsible for Client’s internal or third party disputes, nor liable to Client or its Business Relations for our course of action in response to Client’s internal or third party dispute.

If a signatory does not have actual authority to execute this Agreement, or to manage this Agreement, or to have access to systems to which access is or has been granted, or if the Agreement is deemed invalid for failure of authority to execute on behalf of the respective named party, then the signatory purporting to sign for such party shall be personally responsible for each and every obligation of the purported party under this Agreement (regardless of whether others may also be liable), and shall indemnify, defend, and hold harmless all respective Indemnified Parties (as defined in the Indemnification section of this Agreement), for all losses and damages incurred by an Indemnified Party as a result of such failure of signatory authority, including, without limitation, lost profits and attorney’s fees and costs (even if lost profits and attorney’s fees are not recoverable for other claims arising out of or relating to this Agreement), in addition to and otherwise in accordance with the Indemnification section of this Agreement, all jointly and severally with any other responsible parties.

DISPUTE RESOLUTION.

1. ARBITRATION. Except as provided below in Exceptions to Arbitration, any dispute, claim or controversy between the parties, arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be settled by arbitration in accordance with the American Arbitration Association, before one unbiased (1) arbitrator with no prior relationship to either party, having at least five (5) years of experience as an attorney or judge, who is mutually agreed upon by the parties, or if the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitrator shall be selected as follows:
   1. The plaintiff shall request appointment of a neutral arbitrator by the American Arbitration Association, and if that is not feasible, then
   2. The plaintiff will request the court of appropriate jurisdiction to appoint an arbitrator, and if that is not feasible, then
   3. Each party will submit to the other party a list of the party’s top three (3) preferred arbitrators. If there is no overlap, the parties will exchange lists with each other, and beginning with the defendant, take turns striking one name each until one name remains. Each party’s list shall not be discarded but shall be signed, dated, and maintained in the party’s files.

The arbitrator will be experienced in general contracts, and if possible, computer science or information technology services. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Except as may be agreed upon in a settlement agreement, the arbitrator shall award recovery of attorney’s fees and costs to the prevailing party in accordance with the Attorney’s Fees section of this Agreement. The arbitrator’s findings of fact shall be binding, but a party may appeal to a court of law as to errors in matters of law and for enforcement of an arbitration order. Governing law and venue/seating for arbitration shall be as set forth in the Governing Law; Jurisdiction; Venue section of this Agreement, and the parties consent to the jurisdiction of such venue, waiving any claims of inconvenience or prejudicial forum. To the extent allowed by law,  or except as necessary to file an expressly permissible exception proceeding in a court of law, the parties shall keep the terms, proceedings, and any award or settlement of Arbitration, including negotiations, confidential.

2. Exceptions to Arbitration. At the option of the plaintiff, any claim for emergency, temporary, preliminary, or permanent injunctive relief to enjoin infringement or other misuse of intellectual property rights, or to prevent imminent or ongoing property damage or injury to person or property, or to enjoin violation of confidentiality, non-solicitation, or non-disparagement terms, any or all of which may be brought in a court of law. Appeal of an arbitrator’s final order or award may be appealed to a court of law for legal error or enforcement.
3. Governing Law; Jurisdiction; Venue. This Agreement shall be construed and interpreted according to the laws of the State of Florida, without reference to the rules of conflicts of law. The parties hereby consent to the venue and jurisdiction of the legal tribunals serving Lake County, Florida (including, without limitation, for the seating and venue of any mediation or arbitration proceeding), and each party hereby waives, to the fullest extent permitted by applicable law, any claim or defense that such tribunals constitute an improper, inconvenient, prejudicial, or otherwise inappropriate venue or forum.
4. WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, AND WITHOUT WAIVING ANY REQUIREMENTS FOR MEDIATION OR ARBITRATION (IF OTHERWISE SPECIFIED IN THIS AGREEMENT), EACH PARTY HERETO DEMANDS THAT ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT BE RESOLVED BY A JUDGE, AND HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO WITH RESPECT ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY EACH PARTY, AND EACH SUCH PARTY ACKNOWLEDGES THAT NO PERSON HAS MADE ANY REPRESENTATIONS TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. EACH PARTY HEREBY FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION, AND FURTHER HAS HAD THE OPPORTUNITY TO HAVE THE LEGAL COUNSEL OF ITS CHOOSING REVIEW THIS WAIVER AND THE ENTIRE AGREEMENT, OR ELSE HAS WAIVED SUCH RIGHT AND OPPORTUNITY.
5. WAIVER OF CLASS ACTION. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES TO THIS AGREEMENT HEREBY WAIVE ANY RIGHT TO PURSUE ANY CLAIMS AGAINST EACH OTHER ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL DISPUTES, CONTROVERSIES, OR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE BROUGHT ON AN INDIVIDUAL BASIS, AND NEITHER PARTY SHALL PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING.
6. Attorney’s Fees. In the event of any dispute arising under or relating to this Agreement, whether or not a lawsuit or other proceeding is filed (and whether or not filed in violation of any Arbitration requirement), and at all levels of pre-trial, trial, appeal, enforcement, collection, bankruptcy, and any petition, investigation, or proceeding by or involving any government agency, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, along with attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, court costs, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.

MISCELLANEOUS.

1. Notices. Notices regarding this Agreement, including any Quote and any Client account changes or terminations, shall be sent to the parties at the addresses indicated below, via U.S. Certified Mail (return receipt requested) or other reputable, trackable courier service, with a copy by email. Each party is responsible for updating the other party with any new contact information, in the manner provided herein. 

For legal entities, notices of arbitration or other legal proceedings shall be sent by hard copy to the respective receiving party’s Registered Agent or other legal representative designated for receiving notice of legal proceedings, and an additional copy shall be emailed and sent by reputable, trackable courier to the party itself.

Actual receipt of a notice shall constitute valid delivery notwithstanding technical defect.

To Company: PowerOne Attn: Jim Beyer P.O. Box 428 Tavares, FL 32778 Email: admin@corp.power1.com

For Account Termination: PowerOne Attn: Account Termination P.O. Box 428 Tavares, FL 32778 Email: cancellations@corp.power1.com

To Client:  At the mailing address and email address on Client’s account. It is Client’s responsibility to keep this information updated.

2. Assignment. Client may not assign this Agreement, in whole or in part, without Company’s advance written consent. Any assignment in violation of this provision is voidable at Company’s option. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. A merger, sale, or change in control of a Client entity shall be deemed an assignment. Company may assign this Agreement upon written notice to Client within sixty (60) days after the assignment. Any purported assignment in violation of this provision shall be voidable at Company’s option.
3. Amendment. This Agreement may only be amended in a writing signed by Company and Client. A signed/accepted Quote may be construed as an amendment as to any terms that truly conflict with any term or provision of this Agreement.
4. Time Limitations. If for any reason, notwithstanding that the parties have agreed this Agreement shall be construed under the law of the State of Florida, this Agreement is construed in arbitration or judicial proceedings under law other than the State of Florida, and if such other jurisdiction’s laws allow contractual modification of the statute of limitations, then the parties mutually agree that any action for any matter arising out of or related to this Agreement or any Service (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
5. Opportunity of Counsel. Client, or a User, has the opportunity to consult with the legal counsel of its choosing before accepting a Quote, or otherwise waives such opportunity. No provision of this Agreement shall be construed against any party by reason of the extent to which such party or its legal counsel participated in the drafting thereof.
6. Usage of Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.
7. Relationship of Parties. Company is an independent contractor of Client, and neither party shall make any representation or warranty to the contrary to any third party. There is no relationship of employment, joint venture, franchise, or agency other than independent contractor. Neither party shall have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent, except to the extent that Company’s carrying out of the Services binds Client to a Third Party Provider’s terms of service, policies, or the like, which is necessitated by the carrying out of the Services. Each party is responsible for any and all taxes of any kind levied against it during the course of, arising out of, or relating to this Agreement. 
8. Brokers. Client represents and warrants to Company that it has not dealt with any broker or finder in connection with the referral, securing, negotiation, or performance of this Agreement. Client agrees to indemnify, defend, and hold harmless Company and its Related Parties from and against any and all claims, losses, liabilities, costs, or expenses (including, without limitation, attorneys’ fees) arising from any claim for brokerage commissions or fees made by any broker or finder claiming by, through, or under such party.
9. Further Assurances. Client agrees to provide any additional documents, materials, information, or signatures reasonably necessary to perfect, effect, or preserve the rights, obligations, purposes, and intents of this Agreement, as required by law or as requested by Company.
10. Severability. It is not the intent of the parties to exceed the bounds of the law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable as written, then (a) the parties agree to judicial modification of such invalid, illegal, or unenforceable term, if such modification would render such term legal and enforceable, as close as possible to the original intent, (b) such invalidity, illegality, unenforceability, or judicial modification will not affect any other provision of this Agreement, and (c) the remainder of this Agreement will be construed and interpreted in the least disruptive manner to adhere as closely as possible to the original intention of the parties.
11. Survival. All obligations relating to payment, confidentiality, non-solicitation, non-disparagement, limitation on liability, all aspects of dispute resolution (including, without limitation, indemnification, waiver of jury trial, waiver of class action, attorney’s fees, governing law, jurisdiction, venue, mediation and arbitration if applicable), and any other term or provision of this Agreement which, for its full and intended completion or effect, necessarily must survive the expiration or earlier termination of this Agreement, shall so survive.
12. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement, except if and as expressly provided.
13. Construction. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.  Any reference to any federal, state, local, or foreign statute or law will be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. Unless the context requires otherwise, singular includes plural and vice versa and any gender includes every gender, and where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase will have a corresponding meaning.  The word “including” will mean “including without limitation,” unless the context expressly states it is limiting.  The word “or” will be disjunctive but not exclusive, unless the context expressly indicates it is exclusive. Numerical section references and headings within text are for convenience only and may contain typographical errors. The context of the non-numerical text shall control. Headings and document titles are not rigid. For example only, and without limitation, a “Quote” may be called a “Statement of Work,” or vice versa, and it is still part of the Agreement. The spirit of the Agreement shall be honored.
14. Language Translation. In the event of translation of this Agreement into any other language, the English translation shall govern.
15. Currency. All costs, expenses, and payments shall be stated and paid in U.S. Dollars.
16. No Waiver. Any waiver by a party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof.
17. All obligations relating to payment, confidentiality, non-solicitation, non-disparagement, limitation on liability, all aspects of dispute resolution (including, without limitation, restrictive covenants, indemnification, waiver of jury trial, waiver of class action, attorney’s fees, governing law, jurisdiction, venue, mediation and arbitration if applicable), and any other term or provision of this Agreement which, for its full and intended completion or effect, necessarily must survive the expiration or earlier termination of this Agreement, shall so survive.
18. Counterparts; Electronic Signatures; Acceptance. This Agreement may be executed electronically, including online, or otherwise in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, or may be effective and enforced via a User’s or Client’s acceptance of use of the Website or the Services. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., AdobeSign, Docusign, etc.) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
19. Effectiveness. This Agreement shall not be deemed effective or enforceable for or against any party until all parties have executed it. Any expense or adverse change in financial condition incurred by either party in reliance on the terms of this Agreement prior to the time it is fully executed shall be at such party’s peril, with no right of reimbursement or recovery from the other party.

Last Updated: May 13, 2026