Upon scheduling the services of Key Computer Solutions, LLC this agreement is made effective by and between You and / or Your Company (“Service Recipient”) and Key Computer Solutions, LLC (“Key Computer”, “Service Provider”) of PO BOX 2536, Jupiter, Florida 33468.
Whereas Service Recipient is the owner/lessor/licensee of a certain Computer System (hereinafter defined) for which Service Recipient desires Service Provider to perform certain Services (hereinafter defined); and Whereas Service Provider desires to perform such Services on the terms and conditions set forth in this Agreement.
Now, therefore, in consideration of the mutual promises set forth herein, the parties agree as follows:
DEFINITIONS. For purposes of this Agreement, the following definitions shall apply:
(a) “Computer System” shall mean the computer hardware and the computer software listed used by the Service Recipient in their normal course of business.
(b) “Services” shall mean the Operation, Maintenance and Management of the Computer System, specifically defined in Description of Services.
(c) “Operation” shall mean the operation of the Computer System, including, but not limited to manipulation and computation of data by the Computer System, the outputting of such manipulated and computed data by the Computer System, and communication between elements of the Computer System.
(d) “Maintenance” shall mean remedial maintenance and preventive maintenance of the Computer System.
(e) “Management” shall mean the scheduling of the use of the Computer System, procurement of supplies and spare parts therefor, and recommendation of changes and additions thereto.
DESCRIPTION OF SERVICES. Beginning upon scheduling of services, Key Computer will provide to Service Recipients the following services (collectively, the “Services”):
(a) During the term hereof, Service Provider shall perform Services, which shall be subject to Service Recipients written acceptance, and shall be performed by Service Providers employees, acceptable to the Service Recipient, who are skilled in the Operation and Maintenance of the Computer System. Service Recipient may, for any reason, request that such employees be replaced with other skilled employees of Service Provider if available.
(b) Should emergency service be needed Service Provider shall be on-site or remotely connected to begin addressing the issue within 4 business hours.
(c) The performance of Service Provider shall include Service Providers procurement of supplies and spare parts as needed.
(d) During the term hereof Service Recipient shall provide Service Provider with sufficient work space and Computer System access to perform Services.
PAYMENT. Payment shall be made to Key Computer Solutions, LLC at the address of PO BOX 2536, Jupiter, Florida 33468.
Service Recipient agrees to pay Key Computer within 10 days of invoice.
Service Recipient agrees to pay current rates as listed on the Key Computer Solutions website.
If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 24 percent per year, or the maximum percentage allowed under applicable laws, whichever is less. Service Recipient shall pay all costs of collection, including without limitation, reasonable attorney fees.
In addition to any other right or remedy provided by law, if Service Recipient fails to pay for the Services when due, Key Computer has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies.
TERM. This Agreement may be terminated by either party upon 10 days prior written notice to the other party.
In the event of any termination/cancellation of this Agreement, Service Provider may:
(1) Declare all amounts owed to it hereunder to be immediately due and payable;
(2) Enter Service Recipient’s premises and repossess all supplies, spare parts and other items supplied by Service Provider hereunder for which payment has not been received by Service Provider; and
(3) Cease performance of all Services hereunder without liability to Service Recipient.
(d) The foregoing rights and remedies of each party hereto shall be in addition to all other rights and remedies available to them in law and in equity.
CONFIDENTIALITY. Key Computer, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Key Computer, or divulge, disclose, or communicate in any manner, any information that is proprietary to Service Recipient. Key Computer and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement.
WARRANTY. Key Computer shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Key Computer’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Key Computer on similar projects.
Service Provider warrants that the Services shall be of good quality and workmanship and in accordance with acceptable procedures for the Computer System, and that the Computer System will meet the specifications therefor.
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, SERVICE PROVIDER DOES NOT WARRANT THE SERVICES PERFORMED HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) TITLE; 8) MARKETABILITY; 9) PROFITABILITY; 10) SUITABILITY; AND/OR 11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
LIMITATION OF LIABILITY.
a. Subject to the Service Recipient’s obligation to pay the Price to the Service Provider, either party’s liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to the amount of the invoice for services rendered.
b. To the extent it is lawful to exclude the following heads of loss and subject to the Service Recipient’s obligation to pay the Price, in no event shall either party be liable for any loss of profits, goodwill, loss of business, loss of data or any other indirect or consequential loss or damage whatsoever.
c. Nothing in this clause will serve to limit or exclude either Party’s liability for death or personal injury arising from its own negligence.
DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have ten days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
SEVERABILITY. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
AMENDMENT. This Agreement may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.
GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the State of Florida.
NOTICE. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.