TERMS AND CONDITIONS
- Services & Statements of Work
The terms and conditions contained herein will be a part of any such Statements of Work or Exhibits. In the event, Client chooses to subscribe to any of our services.
Pricing & Terms of Payment
- (a) The price for Services to be provided will be set forth in the sales invoice. In which the service provider may, after the initial term of an Exhibit of Statement of Work, increase charges for Services by giving the Client thirty (30) days written notice.
(b) All payments for services, including the onboarding fee must be made prior to the commencement of the service. (c)Credit given to customers is 7 days unless otherwise specified by Wildfire, contingent upon Client qualifying for credit with Wildfire.
(d) The Wildfire shall specify whether the contract is based on a fixed price or hourly rate. All chargeable services will be billed to the Client unless otherwise specified in Wildfire.
(e) Any sales and Value Added taxes shall be added to the invoice. In the event Client claims exemption from sales and Value Added taxes, Client must provide Service Provider with the appropriate tax exemption certificate from the taxing authority.
Fees & Taxes
- Client, at its expense, shall pay, Onboarding fee, and be responsible for, all licensee fees, business, sales, VAT, or other similar taxes or assessments charged or levied by reason of anything performed under this Agreement, excluding, however, all taxes and assessments applicable to Service Provider income or applicable to Service Provider property. If Service Provider is required to remit any fee, tax, or duty on behalf of or for the account of Client, Client will reimburse Service Provider within ten (10) days after Service Provider notifies Client in writing of such remittance.
Ownership Rights
- Except for any Deliverables as set forth in the provided invoice, Service Provider does not convey or transfer, nor does Client obtain any right or interest in any of the software programs, systems, tools, data or materials or process utilized or provided by Service Provider in connection with the performance of this Agreement, including but not limited to the Plugins and templates. Service Provider grants to Client a perpetual, royalty-free, worldwide right to use the technology embedded in the Services.
Client Representations - Client represents and warrants to Service Provider that Client has the right to authorize Service Provider to repair and/or Service which are or become subject to this Agreement.
Client Responsibilities- Client, at its expense, shall:
a. Allow employees or agents of Service Provider reasonable access to the information the Service is to be provided, and Client shall not require Service Provider’s personnel to sign any document that has not been approved in advance by Service Provider.
b. Provide appropriate documentation required for the completion of the job on time, However, where service is delayed due to late response from the client, and to the due date of the service, the service is liable to termination with no payment refund
e. Provide reasonable assistance to Service Provider as requested.
f. Use the Services and/or instructions provided by the Service provider.
Upon the failure of Client to comply with the responsibilities set forth in this Section (“Non-compliance”), Service Provider may, at its option, refuse to perform any Service where Non-compliance has occurred until such Non-compliance has been cured to the reasonable satisfaction of Service Provider without any liability or obligation under this Agreement or any applicable law; provided further, that Service Provider may charge Client at its then-current labour rates for any Service call at which no Service was performed by Service Provider as a result of Non-compliance.
Limited Warranty
- Client, at its expense, shall:
- (a) Technical Services. Service Provider shall provide technical Services in a good workmanlike and professional manner consistent with current industry standards, and that such Services shall for a period of thirty (30) days following completion conform to the specifications in the Scope of Work. The foregoing limited warranty is contingent upon the Client fulfilling the Client responsibilities set forth above and any other conditions that may be specified in the applicable agreement. All Service completion schedules and due dates provided by Service Provider are definite and are provided for transaction purposes.
In the event Client finds any Services provided hereunder to be defective or nonconforming during the warranty period, subject to the limitations set forth above, Service Provider shall promptly correct such Services to the reasonable satisfaction of Client in accordance with the specifications set forth in the agreement. In the event such corrected Services fail to comply with the specifications set forth in the agreement, then at Client’s option, Service Provider shall again promptly correct such Services or shall reimburse to Client 50% of the payments made to Service Provider for such Services. The foregoing constitutes the Client’s sole remedy for Service warranty claims relating to technical Services.
To the extent Service Provider is supplying third-party hardware or software as part of the Services, such hardware and software shall be provided with the manufacturers’ or publishers’ standard end-user warranties if any. Service Provider makes no independent warranties with regards to third-party hardware or software.
(b) Personnel Services. Warranties, if any, relating to the provision of personnel placement and recruiting Services will be as set forth in the applicable agreement.
Disclaimer of All Other Warranties - WITH THE EXCEPTION OF THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED UNDER LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE PROVIDER DOES NOT PROMISE THAT THE SERVICES PROVIDED WILL BE ERROR-FREE OR THAT CLIENT’S COMPUTER PRODUCTS, HARDWARE OR SOFTWARE WILL OPERATE WITHOUT INTERRUPTION.
Limitation of Liability - SERVICE PROVIDER WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF PROFIT, LOST TIME, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES, OR ANY OTHER DAMAGES RESULTING FROM THE BREAKDOWN OR FAILURE OF ANY COMPUTER PRODUCTS, HARDWARE OR SOFTWARE, OR FROM DELAYS IN SERVICING OR THE INABILITY TO RENDER SERVICE ON ANY COMPUTER PRODUCTS, HARDWARE OR SOFTWARE EVEN IF IT HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SERVICE PROVIDER’S LIABILITY FOR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO SERVICE PROVIDER’S NEGLIGENCE OR INSTALLATION OF SOFTWARE PRODUCTS, DEFECTIVE PARTS OR COMPONENTS, WHETHER OR NOT SUCH DEFECT WAS KNOWN OR DISCOVERABLE, SHALL NOT EXCEED THE ACTUAL PRICE PAID TO SERVICE PROVIDER BY CLIENT FOR THE PRODUCTS OR SERVICES, PARTS OR WHICHEVER IS LESS.
Service Provider shall not be responsible for damages caused by:
(i) accidents, misuse, misapplication, or neglect of Client or any of its agents or employees or as result of Service by any person other than a Service Provider representative;
(ii) placement or operation of software products in an area that does not comply with the manufacturer’s published space or requirements; or
(iii) improper storage and use.
Internet/Transmission Disclaimer. Service Provider does not and cannot control the flow of data over the Internet or the integrity of the Internet (the global system of interconnected computer networks). Therefore, Service Provider disclaims all liability for loss of data, corruption of data, or inability to provide Services, as a result of disruptions, slowdowns, breakdowns, or other technical issues affecting the Internet.
Completion of Services
- (a) Completion of Services shall be documented by the Service Provider Acceptance Form – Exhibit A, which Client shall execute and return promptly. Services shall be deemed complete if Client fails to return the Acceptance Form within 7 days of the completion of Services by Service Provider. For products that do not require installation or Services an Acceptance for Services Delivered form is not required and Acceptance shall occur upon delivery of products to the Client.
(b) If provided for in the Statement of Work, an Acceptance Plan may be co-developed by Service Provider and Client and used to determine successful completion of the deliverables and final acceptance.
Term - Unless otherwise stated herein, the term of this Agreement shall be from the execution of the Provider’s Acceptance Page until the client’s acceptance of the completion of Services as described in Section 5 of this Agreement.
Right of Termination - (a) Service Provider:
If Service Provider is unable to meet the deadline due to any delay in response from the Client to provide technical data required for the completion of the Service, then Service Provider may cancel coverage for that item under the Agreement and Service Provider will refund 50% of the payment for the remaining days of coverage under this Agreement.
(b) Mutual Rights of Termination:
Either party may terminate this Agreement at any time if the other party breaches any material provision hereof and fails within fourteen (14) days after receipt of notice of default to correct such default promptly or to commence corrective action reasonably acceptable to the aggrieved party and proceed with diligence to completion.
After the initial term, unless dates are otherwise designated for specific Services set forth in an Exhibit or Statement of Work, either Party hereto shall have the right to terminate this Agreement without cause, without penalty, and without liability for any damages as a result of such termination at any time giving the other Party at least thirty (30) days prior written notice of such termination. If either Party properly terminates the Agreement, Service Provider will provide a 50% refund for any advanced payment for the remaining days of coverage under the Agreement. Any funds so owed by Service Provider will be refunded in full within sixty (60) days after receiving written notice of contract termination. Notwithstanding any termination of this Agreement, Client shall be obligated to pay Service Provider for (i) all products and services provided by Service Provider in accordance with this Agreement at any time on or prior to the effective date of termination; and (ii) all incidental costs and expenses incurred by Service Provider in accordance with this Agreement at any time on or prior to the effective date of termination.
Personal Information - Service Provider represents and warrants to Client that in connection with the receipt, storage, use and/or transfer of Personal Information, it shall (a) at all times maintain the confidentiality of Personal Information provided Service Provider or otherwise disclosed to Service Provider in connection with the provisions of Services under this Agreement, and For the purposes of this section “Personal Information” means the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: Financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
Nondisclosure - (a) Each party shall retain all rights to its Confidential Material. Each receiving party agrees to take such measures to prevent the unauthorized disclosure to third parties of Confidential Material, as it would take to prevent disclosure of its own proprietary or confidential information but in no event less than reasonable measures. To the extent practicable, information protected by this Agreement shall be marked “Confidential”. Information exchanged prior to the date of this Agreement shall be considered Confidential Material.
- (b) Disclosure will be limited to such employees and agents of receiving party as necessary for proper evaluation and provision of Services under this Agreement. In the event receiving party must secure the Services of a third party for proper evaluation, receiving party shall obtain an agreement from such third party at least as restrictive as this Agreement. Receiving Party shall disclose such agreements to the other party upon request. Except as necessary for proper evaluation and provision of Services under this Agreement, Confidential Material obtained pursuant to this Agreement may not be duplicated, and all Confidential Material exchanged pursuant to this Agreement must be destroyed or returned to the originating party upon request.
(c) Confidential Material may not be used by the receiving party except as expressly permitted herein; no grant of license to use Confidential Material is given by this Agreement.
Client shall not solicit for employment, directly or indirectly, the officers, employees, subcontractors or agents (“Personnel”) of Service Provider who have performed duties in support of this Agreement during the term hereof and until eighteen (18) months after the earlier of: (a) the termination of such Personnel’s engagement; and (b) the termination of this Agreement, unless explicitly agreed to in writing by the parties. No offer or other form of solicitation of employment will be made at any time when the employment of such Personnel is prohibited by this Agreement. Should Client solicit any Personnel for employment in violation of this Section, and should that employee subsequently become an employee of the Client, the Client agrees to reimburse Service Provider an amount equal to the salary and commissions, if any, earned by the employee during the last twelve months while employed by Service Provider. Both parties agree that this amount represents reasonable compensation to Service Provider for its cost of recruiting and training, and does not constitute a penalty. Such amount will be due and payable by the Client within ten days of receipt of written demand from Service Provider. Nothing herein shall prevent an employee of Service Provider from responding to an employment advertisement or announcement of general circulation made by Client. The intention of this Section is to prohibit the active recruitment of Personnel.
Binding Agreement and Assignments - This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement is not transferable or assignable without the prior written consent of the other party provided however, that such consent shall not be required in the event of an assignment made to an affiliate of either party or to a successor or purchaser in a merger, acquisition or sale or transfer of all or substantially all of the business, assets or equity of either party, provided that the successor/assignee is not deemed to be a competitor of non-assigning party.
Waiver - No waiver of any provision or breach shall be implied by failure to enforce any rights or remedies herein provided, and no express waiver shall affect any provision or breach other than that to which the waiver is applicable and only for that occurrence.
Subcontracting - Service Provider may subcontract for on-site Services provided to Client. Such subcontracting will not release Service Provider from any of its obligations in this Agreement.
Force Majeure - Neither Party shall be liable for any failure, inability or delay to perform hereunder (except the payment of money), if such failure, inability or delay is due to circumstances beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strike, lockout, labor disturbance, social conflict, fire, explosion, earthquake or sabotage.
Notices - All notices herein provided for or which may be given in connection with this Agreement shall be by certified mail with postage prepaid and return receipt requested or personal delivery or facsimile.
Dispute Resolution - The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for the administration of this project. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within fifteen (15) days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and the response shall include (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within thirty (30) days after delivery of the disputing party’s notice, the executives of both parties shall meet at a mutually acceptable time and place to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. In the event the parties cannot reach a satisfactory settlement under the aforementioned process, they each agree to present the dispute to non-binding mediation before a mutually agreeable neutral mediator at a mutually agreeable neutral site. If mediation is not successful, the parties may proceed to binding arbitration or litigation.
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