Terms of Service Agreement (Last Updated: June 2020)
THESE TERMS OF SERVICES are made by and between SUURV, Inc., a (“us”, “our”, “we” or “SUURV”), and you, the entity whose name, authorized signatory and contact information appear in the signature block of and Service Agreements signed (“you”, “your” or “Client”).
These Terms of Services govern all the services that we provide to you (collectively, the “Services”). The Services will be described in one or more statements of work that we provide to you (each, a “SOW”). Once you and we sign a SOW, the SOW will become a part of, and governed under, the terms of this Agreement. If there is a material difference or conflict between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability or termination of this Agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.
The terms in this section will have the meanings listed below; other terms may be defined within the context of this Agreement.
a) “Authorized Contact” means that person designated by a party to receive and provide instructions and directions concerning the Services.
b) “Client-Side Downtime” will have the meaning described in Section 9(a)(ii), below.
c) “Confidential Information” will have the meaning described in Section 10(a), below.
d) “Effective Date” means the latest date of the signatures of the parties below.
e) “Gross negligence” is an act or omission “which
(1) when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(2) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others”
f) “Hard Costs” will have the meaning described in Section 8(a), below.
g) “Malicious Action” means to act with ill will, evil motive, or such gross indifference or reckless disregard for the rights of others as to amount to a willful or wanton act.
h) “Minimum Requirements” means the minimum hardware and software infrastructure that must be supplied and maintained by you at all times in order for SUURV to provide the Services to you.
i) “Response Time” will have the meaning described in Section 9(a), below.
j) “Startup Exception” will have the meaning described in Section 9(b), below.
k) “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored or operated by SUURV pursuant to this Agreement.
l) “System Malfunction” will have the meaning described in Section 8(b)(i), below.
m) “Term” will have the meaning described in Section 8, below.
n) “Third Party Products” will have the meaning described in Section 6(a), below.
o) “Updates” means patches and other software-related maintenance updates that are produced and distributed by the manufacturers of software and/or hardware devices.
p) “SUURV Equipment” will have the meaning described in Section 8(d), below
a) System Architecture
Our fees are based upon the configuration of your System as of the effective date of the SOW. Consequently, if the System configuration changes, then we may adjust the scope of services and/or the fees charged to you under an applicable SOW to accommodate those changes.
At all times, all software on the System must be genuine and licensed, and you agree to provide us with proof of such licensing upon our request. If we require you to implement certain Minimum Requirements in a SOW, you agree to do so as an ongoing requirement of SUURV providing its Services to you.
c) Maintenance / Updates
If updates are provided under a SOW, SUURV will install Updates only if SUURV has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System. SUURV will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
d) Third-Party Support
If, in SUURV’s discretion, a hardware or software issue requires vendor or OEM support, SUURV may contact the vendor or OEM (as applicable) on your behalf and pass through to you, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $75, SUURV will obtain your permission before incurring such expenses on your behalf.
If you are supplied with SUURV Equipment, you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. SUURV shall be listed as an additional insured on any policy acquired and maintained by you hereunder, and the policy shall not be canceled or modified without prior notification to SUURV. Upon SUURV’s request, you agree to provide proof of insurance to SUURV, including proof of payment of any applicable premiums or other amounts due thereunder.
You agree to pay the fees described in each SOW. If the SOW does not include a fee schedule, then you agree to pay SUURV on an hourly basis pursuant to SUURV’s standard hourly rate schedule, which will be provided to you prior to the commencement of Services.
Unless otherwise stated in a SOW, all undisputed fees will be due and payable in advance of the calendar month in which the Services are to be provided to you. Payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided. For prepaid fees or fees paid pursuant to a service plan, payment must be made in advance of work performed, unless other arrangements are expressly stated in the SOW.
Fees that remain unpaid for more than thirty (30) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the greater of either 1.5% per month or $40. SUURV reserves the right, but not the obligation, to suspend part or all the Services without prior notice to you if any portion of undisputed fees are not timely received by SUURV. All disputes related to fees must be received by us within forty five (45) days after the applicable Service is rendered or the date on which you receive an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. A re-connect fee may be charged to you if SUURV suspends the Services due to your nonpayment. Time is of the essence in the performance of all payment obligations by you.
c) Late Payment
Any payments made on your account will be applied to outstanding invoices at SUURV discretion.
You hereby grant to SUURV the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System on a 24x7x365 basis, for the purpose of enabling SUURV to provide the Services. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permissions necessary for SUURV to provide Services to the System and, if applicable, at your designated premises.
a) Hardware / Software purchased through SUURV
Unless otherwise stated in a SOW, all hardware, software, peripherals or accessories purchased through SUURV (“Third Party Products”) are nonrefundable once the applicable purchase order is placed in SUURV’s queue for delivery. 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. Unless otherwise expressly stated in a SOW, all Third-Party Products are provided “as is” and without any warranty whatsoever as between SUURV and you (including but not limited to implied warranties).
In no event shall either party be liable for any indirect, special, exemplary, consequential or punitive damages, or for lost revenue, loss of profits (except for fees due and owing to SUURV), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has not been advised of the possibility of such damages. Except for your payment obligations and each party’s indemnification obligations described in this Agreement, each party’s aggregate liability to the other for damages from any and all causes whatsoever and regardless of the form of action that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort or negligence, shall be limited to the amount of the aggrieved party’s actual direct damages , not to exceed the amount of fees paid by you to SUURV for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claim(s) are the result of an aggrieved party’s willful misconduct or gross negligence on the part of the offending party. It is understood and agreed that the costs of hardware or software (if any) provided to Client under this Agreement shall not be included in the calculation of the limitation of damages described in this paragraph.
Each party agrees to indemnify, defend and hold the other party harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the indemnifying party’s breach of this Agreement, or which relate to any act or omission undertaken or caused by the indemnifying party. The foregoing indemnification obligation includes Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services.
This Agreement will begin as of the latest date of the signatures of the parties below and will continue until terminated as described in this Section (the “Term”). Since this is a master agreement, you may have the option (depending on the circumstances) to terminate individual SOWS without affecting other SOWs that are in-progress.
a) Termination Without Cause
Unless otherwise agreed by the parties in writing, no party will terminate a SOW without cause prior to the SOW’s natural expiration date. If you terminate a SOW without cause , then you will be responsible for paying the early termination fee described in the applicable SOW. If no early termination fee is listed, then prior to the effective date of termination of this Agreement without cause, you agree to pay SUURV an amount equal to (i) all expenses incurred by SUURV in its preparation and provision of the Services to you, e.g., licensing fees incurred by SUURV, non-mitigatable hard costs, etc. (“Hard Costs”), as well as (ii) fifty percent (50%) of all fees that would have been paid to SUURV had the term not been terminated prematurely.
b) Termination For Cause
In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice from the non-Defaulting Party. If SUURV terminates this Agreement or any SOW For Cause, then SUURV shall be entitled to receive, and you hereby agree to pay to SUURV, (i) All amounts that would have been paid to SUURV had this Agreement or SOW (as applicable) remained in effect, and (ii) all Hard Costs. If you terminate this Agreement or a SOW for cause, then you will be responsible for paying only for those services that were properly delivered and accepted by you up to the effective date of termination.
i) Client Activity As A Basis for Termination. In the event that any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the System or any part of the System to malfunction on three (3) occasions or more (“System Malfunction”), and you fail to remedy, repair or replace the System Malfunction as directed by SUURV, then SUURV will have the right, upon ten (10) days prior written notice to you, to terminate this Agreement or the applicable SOW For Cause or, at SUURV’s discretion, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.
You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time.
d) Equipment / Software Removal
Upon termination of this Agreement for any reason, you will provide SUURV with access, during normal business hours, to your premises or any other locations at which SUURV-owned equipment or software (collectively, “SUURV Equipment”) is located to enable SUURV to remove all SUURV Equipment from the premises. If you fail or refuse to grant SUURV access as described herein, or if any of the SUURV Equipment is missing, broken or damaged (normal wear and tear excepted) or any of SUURV-supplied software is missing, SUURV will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
e) Transition / Deletion of Data
In the event that you request SUURV’s assistance to transition to a new service provider, SUURV will provide such assistance if (i) all fees due and owing to SUURV are paid to SUURV in full prior to SUURV providing its assistance to you, and (ii) you agree to pay SUURV its then-current hourly rate for such assistance, with up-front amounts to be paid to SUURV as may be required by SUURV. Unless otherwise expressly stated in a SOW, SUURV will have no obligation to store or maintain any Client data in SUURV’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. SUURV will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, SUURV’s deletion of your data beyond the time frames described in this Section 8(e).
SUURV warrants and represents that SUURV will provide the Services, and respond to any notification received by SUURV of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in an applicable SOW (“Response Time”), except for (i) those periods of time covered under the Startup Exception, or (ii) periods of delay caused by Client-Side Downtime, or (iii) periods in which SUURV is required to suspend the Services to protect the security or integrity of your System or SUURV’s equipment or network, or (iv) delays caused by a force majeure event.
i) Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by SUURV but which will not occur between the hours of 9 AM and 5PM CST (or CDT, as applicable), Monday through Friday without your authorization or unless exigent circumstances exist, during which time SUURV will perform scheduled maintenance or adjustments to its network. SUURV will use its best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
ii) Client-Side Downtime. SUURV 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).
iii) Remedies / Limitations. Except for the Startup Exception, if SUURV fails to meet its service level commitment within 95% in a given calendar month, then upon receiving your written request for credit, SUURV will review and, should it be shown there was monetary loss, SUURV will issue you a pro-rated credit in an amount equal to the period of time of the outage and/or service level commitment failure. Should there be multiple service level commitment failures in a given month, the combined credit will not exceed one month of services. All requests for credit must be made by you no later than forty-five (45) days after you either (i) report the outage or service failure to SUURV, or (ii) if applicable, receive a monthly report showing the outage and/or failure. The remedies contained in this paragraph are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to you for SUURV’s failure to meet any service level commitment during the term of this Agreement.
b) Startup Exception
You acknowledge and agree that for the twenty (20) business days following the commencement date of a SOW, the Response Time commitments described in this Agreement will not apply to SUURV, it being understood that there may be unanticipated downtime or delays due to SUURV’s initial startup activities with you (the “Startup Exception”).
For the purposes of this Agreement, Confidential Information means any and all non-public information provided to SUURV by you, including but not limited to your customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of SUURV, (ii) was developed independently by SUURV, or (iii) is or was lawfully and independently provided to SUURV prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
SUURV will keep your Confidential Information confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill SUURV’s obligations under this Agreement. If SUURV is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then SUURV will ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 10.
c) Due Care
SUURV will exercise the same degree of care with respect to the Confidential Information it receives from you as SUURV normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
d) Compelled Disclosure
If SUURV is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, SUURV will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive SUURV’s compliance with the provisions of this Section 10. SUURV will use its best efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, SUURV may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that SUURV has been advised by written opinion of counsel reasonably acceptable to SUURV that it is legally compelled to disclose.
Portions of the Services may require you to accept the terms of one or more third party end user license agreements (“EULAs”). EULAs 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 such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, SUURV is required to comply with a third-party EULA and the third-party EULA is modified or amended, SUURV reserves the right to modify or amend any applicable SOW with you to ensure SUURV’s continued compliance with the terms of the third-party EULA. When needed, SUURV may complete EULAs on the client's behalf.
b) Data Loss
If backup and/or disaster recovery services are to be provided under a SOW, then you hereby understand and agree that SUURV will not be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) SUURV’s failure to backup or secure data from portions of the System that were not expressly designated in the applicable SOW as requiring backup or recovery services.
You hereby represent and warrant that SUURV is authorized to provide the Services to all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that (i) are connected to the System, and (ii) have been designated by you to receive the Services, regardless of whether such device(s) are owned, leased or otherwise controlled by you. Unless otherwise stated in a SOW, devices will not receive or benefit from the Services while the devices are detached from or unconnected to the System.
Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights in one party’s Intellectual Property to the other party.
Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, SUURV may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of a party, or any other transaction in which ownership of more than fifty percent (50%) of either party’s voting securities is transferred; provided such successor expressly assumes the SUURV’s obligations hereunder and SUURV will remain liable to you after said assignment for a period of six months or until a new Agreement or SOW is signed by you and the successor,
No amendment or modification of this Agreement or any SOW will be valid or binding upon the parties unless such amendment or modification is originated in writing by SUURV, specifically refers to this Agreement, and is accepted in writing by one of your Authorized Contacts.
c) Time Limitations
The parties mutually agree that any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within the statutory timeframes set forth under applicable law.
If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
e) Other Terms
SUURV will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into a duly executed SOW. In the event any provision contained in this Agreement is held to be unenforceable in any respect, such unenforceability will not affect any other provision of this Agreement, and the Agreement will be construed as if such an unenforceable provision or provisions had never been included in this Agreement.
f) No Waiver
The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
This Agreement, together with any and all SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or SOW will act only to provide illustrations or descriptions of Services to be provided and will not act to modify this Agreement or provide binding contractual language between the parties. SUURV will not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
h) Force Majeure
SUURV will not be liable to you for delays or failures to perform SUURV’s obligations under this Agreement or any SOW because of circumstances beyond SUURV’s reasonable control. Such circumstances include, but will not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, and acts of God.
You acknowledge and agree that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of SUURV’s employees or subcontractors to discontinue or reduce the scope of their business relationship with SUURV, or recruit, solicit or otherwise influence any employee or agent of SUURV to discontinue such employment or agency relationship with SUURV. In the event that you violate the terms of the restrictive covenants in this Section 13(i), you acknowledge and agree that the damages to SUURV would be difficult or impracticable to determine, and you agree that in such event, as SUURV’s sole and exclusive remedy, therefore, you will pay SUURV as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with you (including any signing bonus).
The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive.
SUURV and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability. SUURV agrees to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. All the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.
l) Governing Law / Venue
This Agreement and any SOW will be governed by, and construed according to, the laws of the State of Texas. You hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Bexar County, in the State of Texas, for any and all claims and causes of action arising from or related to this Agreement. THE PARTIES AGREE THAT EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING FROM OR RELATED TO THIS AGREEMENT.
m) No Third-Party Beneficiaries
The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
n) Usage in 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, supplement, or alter in any manner the terms of this Agreement.
o) Business Day
If any time period set forth in this Agreement expires on a weekend or federal holiday, then such period will be extended to and through the next succeeding business day.
p) Notices / Writing Requirement
Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first-class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or another overnight courier, or one (1) day after the notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from you to SUURV regarding (a) any alleged breach of this Agreement by SUURV, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to SUURV either by U.S. mail or fax, unless such requirement is expressly and specifically waived by SUURV. All electronic documents and communications between the parties will satisfy any “writing” requirement under this Agreement.
q) Independent Contractor
Each party is an independent contractor of the other, and neither is an employee, partner or joint venturer of the other.
SUURV guarantees all work performed by any SUURV-designated subcontractor as if SUURV performed such work itself.
s) Prevailing Party
If a party is required to bring an action to enforce the terms of this Agreement, the party prevailing in the action shall be entitled to an award of the reasonable attorneys’ fees and costs that such party incurred in the action.
The parties may sign and deliver this Agreement and any SOW in any number of counterparts, each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign and deliver this Agreement (or any SOW) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party will be entitled to rely upon the apparent integrity and authenticity of the other party’s signature for all purposes.
This concludes SUURV’s Terms of Service Agreement.
© 2020 SUURV TECHNOLOGIES – SUURV INC.