ExceliCare Business Server Maintenance
Terms and Conditions
This Agreement, by and between ExceliNet Computer Services, Inc., a California Corporation (hereinafter referred to as "ECS"), and %user.company% (herein referred to as "CUSTOMER") WHEREAS, CUSTOMER has desire for Goods and Services as specified by CUSTOMER, WHEREAS, ECS is qualified by virtue of experience, training, education and/or expertise to perform such Services for CUSTOMER;
NOW, THEREFORE, the parties hereto do hereby mutually covenant and agree as follows:
1. Service Engagement. CUSTOMER hereby engages ECS and ECS hereby agrees to perform for CUSTOMER the ExceliCare Business Server Maintenance Services requested by CUSTOMER for the compensation hereinafter set forth, all pursuant to the terms and conditions herein.
2. Goods Purchase. CUSTOMER hereby agrees that hardware and/or software provided as a benefit of the subscribed service is not owned or purchased by CUSTOMER. All software and hardware installed as part of this subscription plan remains the sole property of ECS. As such, ECS has the right to remove hardware and software, at its discretion, from CUSTOMER's site at ECS's expense after the subscription has been terminated.
3. Scope of Services and Term. ECS shall provide Goods and Services as requested by CUSTOMER. The term of this Agreement shall expire upon the next renewal date after cancelation. Non-payment of the subscription fee is not a valid method of cancelation and CUSTOMER will still owe the subscription fee for the term, even if the agreement is subsequently canceled. Services provided in the subscription and their limitations are noted.
4. Compensation. CUSTOMER shall pay ECS compensation for Goods and Services upon receipt of an invoice. As this service is billed per month on a subscription basis, CUSTOMER is requested to keep a valid credit card on file with ECS. This credit card will be billed automatically by ECS one day prior to the renewal date. Should payment not be received within 5 days, support services and delivery of goods may be suspended (at ECS’s discretion) and CUSTOMER shall be subject to collections terms listed below.
5. Appointment Cancelation. CUSTOMER is to call to cancel an appointment at least 48-hours prior to the scheduled appointment time. E-mail is not an acceptable form of contact. This allows ECS enough time to fill that appointment time with another client. If CUSTOMER cancels within the 48-hours prior to the scheduled appointment time or is a NO-SHOW, CUSTOMER will be invoiced for 1-hour, plus the travel fee if it was an on-site appointment. Remote support appointments, if scheduled at least 48 hours in advanced, are subject to this cancelation policy.
6. Collections Terms. All past due accounts may be changed to COD status at ECS’s discretion. Accounts past due may be sent immediately to collections, and are assessed a 1.5% monthly finance charge on all outstanding balances. Any costs incurred for collection of outstanding debts, including reasonable attorneys fees, shall be the responsibility of CUSTOMER.
7. Returned Check Policy. If your check is dishonored or returned for any reason, we will electronically debit your account for the amount of the check plus a processing fee of $25.00.
8. Termination of Agreement for Cause. If either CUSTOMER or ECS fails to fulfill in a timely and professional manner any obligation under this Agreement, as reasonably determined by the other party, then that other party shall have the right to terminate this Agreement effective immediately upon giving written notice and any payment due for Goods and Services already rendered. A pro-rated reimbursement will be issued if ECS fails to fulfill its obligations. Such termination will not release either party from the obligation of payment for, and delivery of Goods that have been ordered from a third party in order to fulfill this Agreement.
9. Changes to this Agreement. The terms of this Agreement may be modified by ECS at anytime. It is the responsibility of CUSTOMER to review the Terms and Conditions prior to automatic renewal.
10. Employees and Subcontracting. ECS may, at its own discretion, employ additional workers or subcontractors for any work required to fulfill this Agreement. In so doing, ECS retains sole responsibility for all work performed.
11. Independent Contractor. It is expressly understood between the parties of this Agreement that no employee/employer relationship is intended; the relationship of ECS to CUSTOMER is that of an independent contractor.
12. Hold Harmless. CUSTOMER shall indemnify, defend and hold harmless ECS, its board of directors and share holders, employees, and subcontractors from all costs, expenses, losses, liabilities and judgments arising out of or caused by the acts or omissions of CUSTOMER, its officers, agents or employees, in the performance of this Agreement.
13. Limitation of Warranty/Liability. CUSTOMER understands that ECS makes no guarantees, beyond those stipulated in writing, as to CUSTOMERS satisfaction or as to the usability of any and all programming/service work performed on or after the date of this contract. ECS, in no way, guarantees that software/programming work will be free from “bugs” / defects within the product AND cannot be held liable for loss or damage, direct, consequential, or incidental arising out of the use of provided software/programming OR the inability to utilize software/programming products as desired.
14. Ownership and Intellectual Property. All programming work performed is the intellectual property of ECS unless otherwise stipulated. CUSTOMER may use programming as they see fit within their organization, but may not resell said programming unless the original version is completely destroyed and is no longer in use. ECS may use the procedures, scripts, coding, layouts, and other elements within other projects. Data entered by CUSTOMER within the database/programming will never be used for any other purpose than in the design and programming of the CUSTOMERS database/programming. It is ECS’s understanding that no coding used in the development of programming for CUSTOMER infringes upon the intellectual property rights of any other entity and, as such, is original property of ECS.
15. Attorney Fees. In the event of any litigation arising between the parties related to this Agreement, then the prevailing party shall be entitled to recover reasonable attorney's fees and costs, including court costs. This Agreement shall be construed in accordance with the laws of the State of California.
16. Time is of the Essence. It is understood and agreed that time is of the essence of this Agreement.
17. Section Headings. The section headings appearing herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Agreement.
18. Inconsistency. In the event any provision of this Agreement and the documents incorporated herein by reference are deemed to be in conflict, the provision in this Agreement shall prevail.
19. Interpretation. The terms and conditions of this Agreement shall be construed pursuant to their plain and ordinary meaning and shall not be interpreted against the maker by virtue of that party having drafted this Agreement.
20. Notices. Any notices required pursuant to this Agreement shall be served at the following addresses:
ExceliNet Computer Services, Inc. %user.company%
39866 Quigley Rd. %user.street% %user.street2%
Murrieta, CA 92562 %user.city%, %user.state% %user.zip%
21. Facsimile of Signatures. Facsimile and online signatures shall be deemed as fully enforceable valid signatures as if such signature were an original signature as of the date executed.
22. Automatic Credit Card Billing. CUSTOMER agrees to inform ECS of any updates to the credit card on file and agrees to ECS automatically charging the invoiced amount 1 day before the renewal invoice date. Invoice will generally be sent on the renewal date each month of your maintenance plan. The credit card to be billed for services is: