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Disclaimer
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Product FAP APPLICATION can be deployed either in Self-hosted or in Subscription mode. CLIENT acknowledges that in order for FAP APPLICATION to work properly in Self-hosted mode, CLIENT will meet minimum hardware and software requirement as described in hardware, software requirement list.
Copy Rights and Trademarks VENDOR hereby grants to CLIENT a license to use the FAP APPLICATION that reflects CLIENT?S corporate name and logo. Copyright to the APPLICATION lies with the VENDOR only. Upon disbursement of full or installment payments, the CLIENT is assigned rights to use the APPLICATION to market and sell lawful products and services. The CLIENT represents to VENDOR and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to VENDOR for inclusion in APPLICATION are owned by the CLIENT, or that the CLIENT has permission from the rightful owner(s) to use each of these elements, and will hold harmless, protect, and defend VENDOR and its subcontractors from any claim or suit arising from the use of such elements furnished by the CLIENT. VENDOR retains the right to display graphics and other APPLICATION elements as examples of their work in their respective portfolios.
Licensed Use The FAP APPLICATION includes concepts, user and program interfaces and structures, functionality, computer code and other technology inherent in all files of the APPLICATION. CLIENT may only use single copy of the APPLICATION provided and may not make additional copies. CLIENT may not de-compile, disassemble, probe or otherwise reverse engineer the APPLICATION. No right to sublicense the APPLICATION is granted herein. VENDOR has informed CLIENT that such concepts, user and program interfaces and structures, functionality, computer code, and other technology are proprietary to VENDOR and considered to include trade secrets by VENDOR. CLIENT agrees that CLIENT shall treat such proprietary information and trade secrets in a manner at least as restrictive as
CLIENT would treat CLIENT?S own proprietary information and trade secrets
Disclaimer and Limitation The FAP APPLICATION is licensed AS IS.? CLIENT acknowledges that CLIENT licenses the APPLICATION for use as a convenience to support CLIENT?S business only. VENDOR HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VENDOR shall not be liable to CLIENT or any third party, for any damages arising from or as a result of any delay, omission, or error in the electronic transmission or receipt of any orders or otherwise made pursuant to any software modified by use of the Licensed APPLICATION, or accessing or obtaining information from any database as modified by CLIENT through the use of the licensed APPLICATION, even if advised of the possibility of such damages. IN NO EVENT WILL VENDOR BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ON ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, EQUITY, OR AT LAW, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT understands that this agreement in no way obligates VENDOR to support, upgrade, correct or provide enhancements to the APPLICATION or that functions contained in APPLICATION will meet the CLIENTS requirements or that the operation of the APPLICATION or CLIENT?S SITE will be error-free. The entire risk as to the quality and performance of the APPLICATION is with CLIENT. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed sever able from this agreement and shall not affect the validity and enforceability of any remaining provisions.
Other Provisions This Agreement is subject to all U.S. and International Laws and Regulations, including, but not limited to those relating to exports and to all other administrative acts of the U.S. Government pursuant to such laws and regulations, both as required under present U.S. Law or as may be required by U.S. Law in the future. CLIENT shall undertake to keep CLIENT informed of any present and future requirements of U.S. and International Law. Nothing contained in this section shall have the effect of enlarging the grant of rights herein. CLIENT agrees to comply with such U.S. and International Laws and Regulations as they pertain to the subject matter of this Agreement. The CLIENT agrees that
the CLIENT is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend VENDOR and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the CLIENT exercise of commerce.
Modifications and Changes The APPLICATION fulfils most of our clients site requirements. In order for APPLICATION to work properly and accept future upgrades, CLIENT agrees not to perform changes to the APPLICATION data, codes, or templates. In case client purchases the APPLICATION with source code, VENDOR is not responsible for any fixes or upgrades.
Maintenance and Hourly Rates This agreement includes minor non-programming maintenance to the APPLICATION including updating links and making minor changes to a sentence or paragraph. It does not include removing nearly all the contents from a page and replacing it with new contents. If the CLIENT or agent other than VENDOR attempts updating the APPLICATION codes, time to repair APPLICATION will be assessed at the hourly rate. The 30 days maintenance period commences after Phase 2 (Training). Changes requested by the CLIENT beyond those limits will be billed at the hourly rate.
Deployment Phases VENDOR guarantees timely completion of Phase 1. The completion of Phases 3 through 5 rests on CLIENT. CLIENT must work with VENDOR to complete these phases in timely manner. Once CLIENT has gone through the training session, CLIENT is responsible for keeping site in a clean and presentable manner.
Assignment of the Project VENDOR reserves the right to assign sub-contractors to this project to insure the right fit for the job as well as on-time deployment.
Payments and Billing In order for VENDOR to remain in business, all payments; including but not limited to, FAP APPLICATION, Internet access, managed services, installation services, and other products and services, must be made promptly. The billing cycle starts immediately after Phase 1 (). Service charges do not include applicable taxes. Delinquent bills will be assessed a 1.5% late fee, if payment is not received within 7 days of due date. If an amount remains delinquent 7 days after its due date, an additional 1.5% penalty will be added for each week of delinquency. VENDOR reserves the right to withhold SITE contents from viewing on the Internet until final payment is made. In case collection proves necessary, the CLIENT agrees to pay all fees incurred by that process. Regardless of the place of signing of this agreement, the CLIENT agrees that for purposes of venue, this contract was entered into in Santa Clara County, California, and any dispute will be litigated or arbitrated in Santa Clara County, California.
Initial Payment and Refund Policy
If the CLIENT cancels order and asks for a refund within 30 days, to the VENDOR, work completed shall be billed at the hourly rate as stated in PRPOSAL, and deducted from the initial payment, the balance of which shall be returned to the CLIENT. If, at the time of the request for refund, work has been completed beyond the amount covered by the initial payment, the CLIENT shall be liable to pay for all work completed at the hourly rate No portion of this initial payment will be refunded unless written request made within 30 days of signing this contract. The undersigned agrees to the terms of this agreement on behalf of his or her organization or business.
Service Level Agreement and Remedy VENDOR will use all reasonable, commercially available efforts to minimize Excess Packet Loss and Network Latency and to avoid Downtime. CLIENT is responsible for backing up his or her files and data related but not limited to his or her products, customers, and information related to day-to-day activities to support his or her business.
Remedy for Failure If after six (6) hours of detection by CLIENT and notification to VENDOR, of excess Latency, Packet loss on the Network, or failure of any other services such as e-mail, Vendor fails to remedy such Latency or Packet Loss, VENDOR will credit CLIENT?S account the pro-rata Bandwidth Fees for such
Continuous Latency or Excess Packet Loss that follows the initial six (6) continuous hours. Credits will be provided on the basis that all such credits in a calendar month will not exceed, in aggregate, the amount of the CLIENT?S monthly service charges. CLIENT must request credit in writing within five (5) business days from the time CLIENT becomes eligible to receive a credit. Failure to comply with this requirement will forfeit CLIENT?S right to receive a credit.
Limitation on Remedies If CLIENT is entitled to multiple credit, such credits shall not be cumulative beyond a total of credits for one (1) calendar month in any one (1) calendar month in any event. CLIENT?S sole and exclusive remedies for any failure by VENDOR to provide Service or adequate Service levels, including but not limited to any outages or Network congestion. VENDOR?S suspension or modification of Service in accordance with the terms of this Agreement shall not be deemed to be a failure of VENDORS to provide adequate Service levels under this Agreement.
Warranty EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CLIENT?S USE OF THE SERVICES AND EQUIPMENT ARE AT CLIENT?S OWN RISK.
VENDOR DOES NOT MAKE, AND HEREBY DISCLAIMS ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VENDOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
Terminations and Default VENDOR has option and upon written notice to CLIENT, to terminate this Agreement in whole or in part, without penalty, if the other party is in default under any material terms of this Agreement, and action to correct such default is not commenced within (30) days after receipt of notice from the other party, and such default is not thereafter occurred within thirty (30) days after commencement of corrective action. A material breach by CLIENT, but not limited to, spam violations, may result in immediate termination.
No Oral Modification Any modifications to this Agreement shall be in writing and endorsed by both VENDOR and CLIENT.
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