Customer Services Agreement
This Customer Services Agreement (“Agreement”) is effective as of the date of acceptance and sign up, and is made by and between Technical Resource Solutions, LLC with offices located at 185 W. Main Street, Suite A, Canton, GA 30114 and 120 Arnold Mill Park, Suite 100, Woodstock, GA 30188 (“TRS”) and the party accepting hereto (the “Customer").
In consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the parties agree as follows:
1. Scope of Agreement and Description of Services. From time to time, Customer may request, and TRS may provide, the services set forth in the schedules attached hereto (“Services”). The parties may agree upon the addition of multiple schedules as this Agreement may cover more than one Service at any given time.
2. Term. This Agreement shall be effective from the date set forth above and shall continue until terminated as set forth herein. Each schedule shall have its own term as specified therein (a “Schedule Term”). This Agreement can be terminated by either party giving to the other a written notice of termination. The notice of termination shall specify the effective date of such termination. Notwithstanding, in the event that this Agreement is terminated for convenience as set forth in this Section 2, any schedules in effect at the time of termination shall continue until the expiration of the Schedule Term, and shall continue to be governed by the terms of this Agreement as if there was no termination.
3. Fees; Payment.
a. Each schedule shall set forth the applicable fees for such Service. Rates may be subject to change. TRS shall notify Customer of any rate changes prior to the provision of any Services pursuant to the new rates, and Customer’s acceptance of such Services shall constitute Customer’s consent to the new rates.
b. Payment is due at the time of Service unless other credit terms have been agreed upon in writing and signed by all parties to this Agreement. If credit terms have been agreed upon, invoices will be submitted by TRS for payment by the Customer pursuant to such credit terms. Payment is due upon receipt and shall be past due if not received thirty (30) days from the date reflected on the invoice.
c. All fees, costs and expenses owed by Customer under this Agreement shall constitute a commercial account rather than a retail installment transaction. A finance charge of 1.5% per month on the unpaid amount of an invoice will be charged on past due accounts. Payments by the Customer will thereafter be applied first to accrued interest and then to the principal unpaid balance. In the event Customer has an account which is past due, or fails to make payment at the time of services if no credit terms have been agreed upon, TRS may suspend performing further work for Customer (either pursuant to this Agreement or any other agreement for services between the parties) until such time as all amounts due and owing to TRS by Customer are paid in full. If at any time hereafter TRS employs counsel to pursue collection, then in such event, all of the reasonable attorneys' fees and costs relating thereto and any other fees and costs incurred by or on behalf of TRS due to the failure of the Customer to pay sums due hereunder when due and payable shall be a liability of the Customer to TRS, payable on demand.
4. Confidentiality. Both parties acknowledge that, in connection with this Agreement and its relationship with the other party, it may obtain information relating to the other party which is of a confidential and proprietary nature ("Confidential Information"). Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which is confidential, proprietary or trade secret information of the other party. Both parties shall at all times, both during the term of this Agreement and for a period of at least three (3) years after its termination, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by the disclosing party under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party’s written consent. The receiving party further agrees to immediately return to the disclosing party all Confidential Information (including copies thereof) in such party’s possession, custody, or control upon termination or expiration of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (a) has entered the public domain except where such entry is the result of the receiving party’s breach of this Agreement; (b) prior to disclosure hereunder was already rightfully in the receiving party’s possession; or (c) subsequent to disclosure hereunder is obtained by the receiving party on a nonconfidential basis from a third party who has the right to disclose such information to the receiving party. In the event Confidential Information is required to be disclosed pursuant to a court or administrative order, such discloser shall not violate the terms of this section so long as the other party is given adequate notice and the ability to challenge such required disclosure or to obtain an appropriate protective order.
5. Limitation of Liability; Disclaimer of Warranties
a. TRS shall not be liable for any indirect, special, punitive or consequential damages, loss of profits or revenues, or exemplary damages of any kind, whether arising out of this Agreement or from any breach or partial breach of the provisions of this Agreement or arising out of any act or omission of any of the parties, or arising under theories of strict liability or tort, regardless of whether such party was advised, had other reason to know, or in fact knew of the possibility thereof. TRS’s total liability and Customer’s total remedy shall not exceed the total amount that has been paid by Customer to TRS for the Services which are subject to the breach in the prior twelve (12) months.
b. EXCEPT AS MAY OTHERWISE BE SET FORTH HEREIN, TRS MAKES NO WARRANTIES EXPRESS OR IMPLIED WITH RESPECT TO ANY SERVICES PROVIDED BY TRS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO CAUSE OF ACTION REGARDLESS OF FORM ARISING OUT OF THE SERVICES UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE MONTH AFTER THE CAUSE OF ACTION HAS ACCRUED, EXCEPT THAT AN ACTION FOR NONPAYMENT MAY BE BROUGHT WITHIN ONE YEAR OF THE DATE OF LAST PAYMENT.
c. Customer, having been so informed, in further consideration of TRS's willingness to provide such Services, hereby releases and forever discharges and acquits TRS, its members, managers, employees, agents, attorneys, insurers, spouses heirs successors and assigns from any and all claims, counterclaims, actions, demands, cause or causes of action, suits, controversies, damages, judgments, executions, liabilities, or losses of any nature, costs, attorneys’ fees, and/or expenses of any nature in law or equity that may arise as a result of or in connection with the performance of the Services and not resulting from the gross negligence of TRS, its agents and employees.
6. Notices. Notices hereunder shall be effective when in writing and delivered personally, by certified mail return receipt requested, by registered mail, or through a commercial overnight delivery service which provides a receipt, to the parties at the address set forth on page 1.
7. Default; Opportunity to Cure Default.
a. Either party hereto may terminate this Agreement by written notice to the other party in any of the following events: (i) default or breach of any material term or condition of this Agreement by the other party which remain uncorrected for thirty (30) days after the party in default or breach receives written notice of default or breach from the other party; (ii) dissolution or liquidation of the other party; (iii) insolvency or bankruptcy of the other party, or institution of any proceeding by or against the other party under the provisions of any insolvency or bankruptcy law; (iv) appointment of a receiver for any of the other party’s property; (v) issuance of an order of execution against the property of the other party pursuant to a court judgment which is not removed within thirty (30) days; or (vi) substantial inability to perform or carry on its obligations under this Agreement
b. Neither party shall be in default under this Agreement unless and until the non-breaching party shall have given the breaching party written notice of such breach and the breaching party shall have failed to cure the same within thirty (30) days after receipt of such notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if the breaching party shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such breach shall be extended for such period of time as may be necessary to complete such curing. Upon the failure by the breaching party to timely cure any such breach after notice thereof from the non-breaching party, the non-breaching party shall have the option to take such action as it may determine, in its sole discretion, to be necessary to cure the breach. Notwithstanding any provision to the contrary, the parties’ legal remedies shall not be abridged.
c. In the event that a schedule is terminated either as a result of Customer’s termination for convenience, or as a result of TRS’ termination pursuant to Section 7(a), the parties acknowledge that the actual damages likely to result are difficult to estimate. Therefore, as liquidated damages and not a penalty, Customer shall remain liable for all payments due for the remainder of the Schedule Term.
8. Severability. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then: (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable shall be unaffected; (ii) this Agreement shall be construed as if the provision(s), or portion(s) thereof, ruled wholly or partly invalid or unenforceable were not present; and (iii) the parties shall attempt in good faith to re-negotiate the terms of the unenforceable or invalid provisions(s) or the affected portion(s) thereof.
9. Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, excluding its conflict of law provisions.
10. Survival. The parties' rights and obligations under this Agreement which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement.
11. Miscellaneous. In the event of Acts of God, war, governmental order or other similar cause beyond the reasonable control of a party hereto whose performance is affected thereby, such affected party shall not be liable for any failure or delay to perform its obligations under this Agreement. The schedule shall be extended for the same period as the affected period. This Agreement shall not be assigned or transferred without the prior written consent of the other party, except TRS shall have the right to assign, convey or otherwise transfer its rights, title, interest, and obligations under this Agreement, in whole or in part, to any entity controlled by, controlling or under common control of said party, or any entity into which TRS may be merged or consolidated or which purchases all or substantially all of its assets. No provision of this Agreement may be changed or modified in any manner, except by an instrument in writing signed by duly authorized representatives of both parties hereto. The failure of a party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of that party to require performance of that provision. Any waiver by either party of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself or a waiver of any right under this Agreement. The paragraph and section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.
TRS and Customer have executed this Agreement shall be effective as of the date of electronic acceptance and sign up.
Web Hosting Services
This Web Hosting Services Schedule (“Schedule”) is attached to and incorporated as an integral part of the Customer Services Agreement (the “Agreement”) by and between Technical Resource Solutions, LLC (“TRS”) and and the party accepting hereto (the “Customer") as of the date of acceptance and sign up (“Schedule Effective Date”). For purposes of this Schedule, all capitalized terms will have the same meaning set forth in the Agreement.
1. Services. TRS shall provide Customer with website hosting, SSL Certificate and backups (“Services”).
2. Schedule Term and Termination. The Schedule Term shall commence on the Schedule Effective Date and shall continue on a month to month basis until terminated by either party upon thirty (30) days’ prior written notice to the other. Upon expiration, Customer shall pay TRS for any Services performed through the date of termination.
3. Fees. Customer shall be invoiced monthly fees in the amount of $20.00 each month in advance. All fees as set forth herein shall be payable in accordance with the terms of Section 3(b) of the Agreement.
4. Ownership. Customer acknowledges that TRS may utilize a third-party data center to provide the Services (the “Platform”). By execution of this Schedule, Customer provides its consent for TRS to establish a Customer agent portal pursuant to the TRS account. Customer hereby releases TRS from any liability associated with such third-party provider.
5. Warranties. TRS warrants the following:
(b) It is authorized to provide the Services hereunder; and
(c) It shall pass through to Customer all applicable benefits afforded to it as an end user of an authorized partner of the Service Provider Supplier.
TRS does not warrant that the Platform will be uninterrupted or error free, not does not make any warranty as to the results that may be obtained from the use of the Service.