Terms and Conditions

TERMS AND CONDITIONS

THANK YOU FOR CHOOSING F8 CONSULTING! BY AGREEING TO USE OUR SERVICES,
YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY.

The following constitutes the Master Service Agreement between you (also referred to herein as the “Customer” or “Client”) and F8 Consulting LLC (also referred to herein as “F8”, “F8 Consulting” or “Provider”) (“Agreement”). If a Master Service Agreement already exists between you and F8, the terms and conditions herein constitute an Attachment to the Agreement.
This Agreement is entered into between Provider and Client. The Agreement consists of the terms and conditions listed herein and any statement of work, schedule, exhibit, or similar document executed under this Agreement (each known as an “Attachment” to this Agreement). Provider and Client may be referred to herein collectively as “Parties” and individually as “Party.”

WHEREAS, the Provider provides computer network support services, Help Desk assistance, and other services which are more fully described in each Attachment (the “Services.”)

WHEREAS, the Client is in need of assistance in the technology support area.

WHEREAS, having reviewed the Provider's background and experience, the Client has determined that the Provider is competent to assist the Client with such matters.

NOW, in consideration of the promises and conditions contained in this Agreement, and intending to be legally bound, the parties mutually agree as follows:

1. Services. Provider will provide to Client the Services specified in the latest Attachment, annexed hereto and made a part hereof (referred to herein as Service Plan).
2. Term. This Agreement will commence as of the Commencement Date and will continue as listed on the latest Attachment agreed to by both parties. Term listed on latest Attachment shall automatically renew for subsequent one-year period until either party gives the other written notice of termination at least sixty (60) days prior to the expiration date of the current term. Termination fee applies if service agreement is terminated prior to the expiration date of the latest term for service.
3. Payment. Provider shall invoice Client and Client agrees to pay Provider the charges listed in the latest Attachment. Unless specified in an Attachment agreed to by both parties that states otherwise, (i) recurring fees will be billed monthly; (ii) non-recurring fees for work performed outside of the scope of the Agreement will be due upon Client’s authorization to perform; and (iii) all invoices shall be payable within fifteen (15) calendar days of invoice date.
1. Payments must be made by electronic check (“eCheck”), unless otherwise stated in an Attachment. Payment is due on or before the 1st day of each month. For recurring automatic payments by eCheck, Client agrees that the account will be charged on or around the 1st of each month without further notice or authorization from the Client necessary and will deliver a payment receipt electronically.
2. Pricing will be adjusted for increases to the number of supported users, workstations, or other equipment listed on the latest-ending Attachment. Notice to the change in price will be reflected on the invoice.
3. Late payments will incur a $35 late fee for every 30 days that full payment is not made. If Services are discontinued due to nonpayment of fees and subsequently recommenced, a reconnection fee of $10 per person covered under this Agreement will apply, in addition to applicable interest. Accounts over 30 days old may be deactivated at Provider’s discretion until payment is received.
4. Checks returned for non-sufficient funds will be assessed a $35 handling fee to cover Provider’s bank fees and administrative fees. Client agrees that not to amend or modify this Agreement with any restrictive endorsements (such as "paid in full"), releases, or other statements on or accompanying checks or other payments accepted by Provider and that any such notations shall have no legal effect. A $35 fee will be assessed for each declined transaction processed by Provider.
5. Provider will apply any partial payment to the outstanding charges in the amounts and proportions that Provider determines. Acceptance by Provider of partial payments from Client shall not be construed as a waiver, release or relinquishment of any right, remedy or defense available, legal or equitable, all of which are expressly reserved.
6. If Client disputes an invoice in good faith, Client may withhold the disputed amount, not to exceed one month’s recurring charge for such Service, provided that Client must (i) notify Provider within fifteen (15) calendar days of any such invoice, specifying the nature of the dispute or inaccuracy; and (b) pay any undisputed amounts as provided herein. Both Parties will in good faith investigate and attempt to promptly resolve any disputed invoices. Once resolved, Client will pay any amounts owed within five (5) calendar days from the date of resolution.
7. The undersigned person signing on behalf of Client unconditionally guarantees that the Client will timely perform all obligations under this Agreement and waives any notification if the Client is in default or consents to any extensions or modifications granted to the Client.
4. Provider’s Responsibilities. Provider shall provide Client with ongoing Services listed in Proposal.
5. Client’s Responsibilities. Client shall be responsible for providing Provider with the following:
1. Good faith effort to be available to communicate with the Provider and providing any information Provider requests to complete service requests, including necessary passwords and means of access to Client’s data, server or systems;
2. Removal of software that is deemed End of Life (EOL) by the manufacturer, and if you refuse to upgrade the software you acknowledge that you will be fully responsible for all liabilities incurred due to said software, and you agree to defend, indemnify and hold Provider harmless from any and all losses, costs, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees) incurred or arising from any claim arising out of the continued use of EOL software;
3. Providing convenient and timely access to the equipment covered under this Agreement, adequate working space and facilities within a reasonable distance of the equipment, and access to and use of all information, internal resources, and facilities determined necessary to service the equipment;
4. Permission to install Monitoring Software as defined herein and any other software that Provider deems necessary to fulfill Client’s service requests;
5. Current list of all users covered under the Service Plan upon Provider’s request;
6. Genuine, licensed vendor-supported software and applications, including updates and patches;
7. Current anti-virus software with a valid update subscription;
8. Functional firewall;
9. Encrypted wireless data traffic in the supported office location(s);
10. A minimum of broadband speed Internet connectivity;
11. Appropriate cabling to all covered computers and devices;
12. Appropriate air conditioning and ventilation for all covered computers and devices to maintain temperature and air quality as specified by the applicable hardware manufacturers;
13. Power surge protection for all covered computers and devices;
14. Backup of data, data integrity and acknowledgment that absent gross negligence Provider is not liable for loss of data;
15. Conducting preliminary diagnostic steps or provide additional information as per request of Provider related to a support request prior to a technician being dispatched to Client's facility;
16. Assignment of one employee to act as a representative of the Client (“Technology Contact Person” or “TCP”) to make communications between both parties effective and inform the Technology Contact Person of the policies and procedures to file service requests as set forth in this Agreement;
17. Inform employees utilizing services under this Agreement of the service request policies and the role of the Technology Contact Person as set forth in this Agreement;
18. Inform supported employees of the policy regarding the installation of new hardware or software to the network;
19. Training employees to understand how to properly use company-issued equipment or software;
20. Notifying Provider prior to installing hardware or software onto the network, modifying hardware or software for use other than that authorized by the manufacturer, neglect, malicious activity or misuse of hardware or software by Client’s employee(s) or third-party agents, electrical damage or power surges at location;
21. Ensuring the security and confidentiality of all passwords provided to you by Provider as part of the Service Plan, and you acknowledge that you will be fully responsible for all liabilities incurred through the use of any password (whether lawful or unlawful) and that any transactions completed under your password, will be deemed to have been lawfully completed by you, and in the event of any incident you agree to defend, indemnify and hold Provider harmless from any and all losses, costs, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees) incurred or arising from any claim arising out of the use of a password provided to you under this Agreement;
22. Perform all other services not provided by Provider.
6. Service Hours. “Service Hours” are Monday through Friday from 9 a.m. to 5 p.m. Eastern Standard Time, Monday through Friday, except for holidays and other days as per the Provider’s holiday schedule. “Holidays” are defined as days designated by Provider as a day when service is suspended or reduced and federal holidays. Service hours on days preceding or proceeding holidays are as follows (“Holiday Schedule”): If a holiday falls on a Tuesday there will be no service hours on the preceding Monday, and if a holiday falls on a Thursday there will be no service hours on the following Friday. In addition, service hours are from 9 a.m. to 3 p.m. on the business day preceding the day(s) in which Provider is closed due to a holiday. Work performed outside of the Service Hours shall be billed at the Provider’s current rates.
7. Technology Contact Person. Client shall designate one employee as a TCP and may designate one other employee as backup contact person to liaise with the Provider in the event that the TCP is unavailable due to vacation, illness or any other absence from work. ALL SERVICE REQUESTS AND TECHNOLOGY RELATED QUESTIONS COVERED UNDER THIS AGREEMENT MUST BE COMMUNICATED TO THE PROVIDER BY THE CLIENT’S TCP. Client is responsible for ensuring that the designated TCP is able to do the following: 1) able to access the service location during hours of coverage, 2) able to relay all service requests from end users to Provider according to the Provider’s methodology; 3) able to liaise information between the Client and Provider; 4) makes a good faith effort to assist Provider in performing services upon Provider’s request (for example, turning on a workstation, checking whether an indicator light on a device is on or checking to see if a wire is unplugged) and 5) accept notice on behalf of the Client. Provider, in its sole discretion, may refuse to fulfill service requests that are not communicated by the TCP, and in doing so, is not in breach of this Agreement and does not waive any right to bill the Client on an hourly basis for any service requests communicated by someone other than the TCP. Provider in its sole discretion may deem Client’s employee as unsuitable for the position of TCP. In the event that Provider deems an employee of the Client as unsuitable for the TCP position, Client must reassign the TCP role within ten (10) business days from Provider’s notice to Client about the employee’s unsuitability. Client shall notify the Provider of changes to its designated TCP within 48 hours of its change in designation. If a TCP is not designated by Client within fourteen (14) days of the date of the contract, an additional charge of $20 per user per month will be added for the convenience of allowing all covered users to relay requests directly to Provider rather than through a TCP. This fee may be removed once a proper TCP is designated.
8. Response Time. Major outages will be responded to within two (2) hours and minor outages will be responded to within four (4) hours, unless otherwise provided or an unforeseen delay occurs. A major outage is defined as total network inoperability in which all employees do not have access to any of the servers on the Client’s network. A minor outage is defined as any non-total network inoperability. Service requests made after 3:00 PM may be responded to the following business day but will still fall within the response time frame listed in this section. Response time begins to accrue after the Client notifies the Provider of the issue. Response time will be suspended when service hours end for the day and will resume upon the start of service hours the following business day. Parties may agree to a different response timetable. Hours of operation are subject to change. Any modifications to this schedule will be announced via electronic mail to the client’s designated Technology Contact Person.
9. Resolution Time. Provider will make reasonable efforts to resolve issues within the specified time. Major outages will be resolved within one (1) business day and minor outages will be resolved within five (5) business days, unless otherwise provided or unforeseen delays occur. Resolution time begins to accrue after the Provider’s response to the service request. Accrual for resolution time will be suspended when Provider’s business hours end for the day and will resume upon the start of business hours the following business day.
10. Excluded Services.The following services are not included in the Service Plan:
    1. Project work, including but not limited to, installation or upgrades to hardware or software that is not a part of the Client’s network architecture as of the date of the original Agreement, disaster recovery for virus or malware attack that affects more than one workstation, setup of additional network environments, penetration or vulnerability testing, equipment disposal or destruction, moving services, audit response preparation, cabling or wiring (both infrastructural or exposed), data migrations, database programming, or website-related issues;
    2. Support for problems or failures in or arising out of any equipment, software, modification, improvement or service provided by anyone other than Provider without prior written consent from Provider;
    3. Purchase of hardware, software, subscription services or manufacturer warranties or support;
    4. Training on the installation or use of software, including but not limited, to Microsoft Office Suite;
    5. Data backup, spam filtering, data storage service or email service or
    6. Retrieval or recovery of any data or information that may have been corrupted or lost in connection with any problem or failure;
    7. Support for problems or failures caused by improper installation of a product; failure to use Product in accordance with the applicable specifications and documentation from the manufacturer; failure to use a product within the authorized operating environment; or any other improper use of a Product;
11. Preexisting Conditions. A preexisting condition is defined as an issue or technical condition that existed prior to the commencement of Provider’s coverage under this Agreement that is discovered by the Provider or Client within the first ninety (90) days after the commencement of coverage under this Agreement. Provider will troubleshoot preexisting conditions to prevent downtime. However, Provider shall not responsible for downtime resulting from preexisting conditions, including, but not limited to, aging hardware (defined as equipment more than four years old), virus infections, operating system issues, insufficient storage and erroneous group policies set by the previous technology provider.
12. Method of Services. Provider will perform the services using a combination of remote monitoring, on-site support and outsourced services provided by third party providers (“Third Party Providers”). Provider, in conjunction with its employees and agents, will determine the method, details, and means of performing the work to be carried out for Client. Client shall have no right to, and shall not, control the manner or determine the method of accomplishing such work. Client may, however, require Provider’s employees and agents to observe the Client’s security and safety practices at all times.
13. Service Visits. In the event an issue covered under the Service Plan cannot be resolved remotely, a technician will be dispatched to the Client’s office (“Service Visit”). Client is entitled to one (1) Service Visit per week, unless stated otherwise in Attachment.
14. Data Backup. Client agrees to establish and regularly follow procedures for fail-safe backup of its data. The Client further explicitly agrees that Provider shall not be responsible for the integrity or existence of any data on the Client’s network or any individual computer of the Client. Provider may provide Client with online backup space for storage of critical data located on Client’s server(s). Client understands that the amount of storage provided by Provider may not be sufficient to backup all of Client’s data and Client shall be responsible for backing up any data beyond that which Provider backs up. Provider shall not be responsible for any data lost due to Client’s failure to back up data.
15. Non-Solicitation. During the term of this Agreement and for a period of one year thereafter, Client agrees not to hire, solicit, or attempt to solicit, whether directly or indirectly, the services of any employee or independent contractor of the Provider that has performed work for the Provider within the past six months from the date of hire by the Client. Violation of this provision shall, in addition to other relief, require the Client to compensate the Provider with fifty percent (50%) of the solicited person’s annual compensation by the Provider. Payment shall be made in lump sum within ten (10) business days of the solicited person’s hire date. Interest will accrue on past-due balances payable under this section as of the date payment is due at the lower of (i) one and one-half percent (1.5%) per month or (ii) the highest rate permitted by applicable law.
16. Independent Contractor Status. Provider is an independent contractor and not an employee of the Client or any of its subsidiaries or affiliates. Nothing herein shall be construed to create an employer-employee, partnership or joint venture relationship between the Client and Provider. It is understood that the Client will not withhold any amounts for payment of taxes from the compensation of Provider hereunder.
17. Confidentiality and Privacy. Personal information shall be considered property of the Client. “Personal Information” is defined as confidential and proprietary information and documents, including employee records, and nonpublic personal information, in any form (e.g., electronic, paper, or other) which Provider becomes aware of during the course of its performance hereunder. Provider shall hold all Personal Information in the strictest confidence and in accordance with applicable laws and regulations. Provider shall not disclose the Personal Information to any third party without the prior written consent of Client, unless (i) required to do so to perform Provider's obligations under the Agreement or (ii) required by law in which event Provider shall promptly notify Client of such request or requirement. Provider shall use such Personal Information only in connection with the furtherance of the business relationship between the parties, and Provider shall make no further use, in whole or in part, of any such Personal Information. Provider further agrees to disclose the Personal Information only to its employees whose services are required in furtherance of the objectives of the business relationship between the parties, and to require its employees to comply with the terms of this Agreement. This section shall survive any termination of the Agreement.
18. Service Level Agreement. During the Term of this Agreement, Provider will use reasonable efforts to provide each Client with 99.99% Network Availability (the “SLA”). “Network Availability” is defined as total network operability. Network availability is based on a calendar-month basis. For the purposes of calculating Network Availability, Provider may exclude and shall not be held responsible for failures to provide Services if any of the following exclusions exist: (i) defect or malfunction in any hardware and software which adversely affects Provider’s ability to perform the Services; (ii) problems caused by Client not covered under Services; (iii) periods of time that are necessary for repairs or maintenance, including scheduled maintenance (approximately less than one hour per month); (iv) changes made to the network which Client failed to communicate to MSP; (v) circumstances that constitute a Force Majeure Event as described in the MSA; (vii) service failures that result from actions or inactions of Client contrary to Provider’s recommendations; (viii) delays or downtime due to any factor outside of Provider’s reasonable control and (ix) loss of Internet connectivity or general Internet congestion to Client site for any reason. If Provider does not meet the SLA, and if Client meets its obligation under this Agreement, Client will be eligible to receive the Service Credits described below. “Service Credit” is defined as one (1) of Service added to the end of the Term (or monetary credit equal to the value of days of service) at no charge to Client. To receive Service Credits, Client must notify Provider within thirty days from the time Client becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Client's right to receive a Service Credit. The aggregate maximum number of Service Credits to be issued by Provider to Client for all Downtime that occurs in a single calendar month shall not exceed five (5) days of Service added to the end of Client's term for Service. This SLA states Client’s sole remedy for any failure by Provider to meet the SLA.
19. Disclaimer of Warranty. PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE. FURTHERMORE, PROVIDER EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE 100% OF THE TIME.
20. Limited Liability. PARTIES ACKNOWLEDGE AND AGREE THAT THE COST OF SERVICES HAS BEEN NEGOTIATED IN CONSIDERATION OF THEIR AGREEMENT TO LIMIT CERTAIN OF PROVIDER’S LIABILITIES. ACCORDINGLY, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS, LOSS OF DATA, COMPROMISED OR CORRUPTED DATA, INCORRECT TRANSMISSION OF DATA, FAILURE TO PROVIDE SERVICE, DELAY OF SERVICE PROVISION, COST OF SUBSTITUTE PRODUCTS, COST OF CAPITAL, MALWARE ATTAACKS, INTERNET CONNECTION ISSUES, GENERAL INTERNET CONGESTION, DOWNTIME OR FOR ANY OTHER REASON. FURTHER, PROVIDER WILL NOT BE RESPONSIBLE FOR DAMAGES OCCURRING FROM CLIENT FAILING TO PERFORM ITS RESPONSIBILITIES LISTED HEREIN OR FROM ISSUES RELATED TO HARDWARE OR SOFTWARE UPGRADES RELEASED BY THE MANUFACTURER OF SAID EQUIPMENT INCLUDING SERVICE PACKS. “DOWNTIME" IS DEFINED AS A PERIOD OF TIME THAT A SYSTEM FAILS TO PROVIDE OR PERFORM ITS PRIMARY FUNCTION. PROVIDER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM RELATING TO SERVICES OR THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY CLIENT FOR SERVICES IN THE ONE MONTH IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM OR ONE TWELFTH (1/12) OF ONE YEAR OF SERVICES, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS OF LIABILITY IN THIS SECTION WILL NOT APPLY FOR PROVIDER’S CLAIMS RELATING TO (I) NONPAYMENT; (II) SOLICITATION OF PROVIDER’S EMPLOYEES, (III) TERMINATION OF SERVICES, OR (IV) INDEMNIFICATION OF PROVIDER BY CLIENT. ALL OF THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY, HOWEVER, WHETHER THE APPLICABLE CLAIM IS BASED ON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE, AND WHETHER THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THEPOSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
21. Indemnification. Client shall indemnify and hold Provider harmless from any claim, demand, liability, cause of action, or damages for actual or alleged infringement of any intellectual property rights arising from Provider’s performance of services under this Agreement. Other than as provided herein both parties agree to indemnify, defend and hold harmless each other, its agent, employees and assigns, from and against any claim, demand, liability, cause of action or demand arising out of or relating to personal injury or property damage due to or arising out of the acts of that party, its agent, employees and assigns. However, each party shall have no obligation to hold harmless, defend or indemnify the other from or for liability arising from the other party’s own intentional or grossly negligent acts.
22. Insurance. The Client represents that it has procured and maintains a policy or policies of insurance in the amount equal to one hundred percent of the full insurance replacement value, without regard to devaluation for technology advances, of all computer hardware and software on the premises of the Client. Although Provider will take reasonably responsible measures to avoid any activity that would jeopardize or conflict with said insurance coverage maintained by Client or cause the premium charged to the Client to increase, Provider shall not be responsible for damage to any of the Client’s computer equipment or data, except in the event of gross negligence by Provider.
23. Provider’s Remedies.
    1. Late or Non-Payments: Client may be billed fees, charges and assessments related to late payments or non-payments if for any reason (i) Provider does not receive for the Services by the payment due date or (ii) Client pays less than the full amount due for the Services.
    2. Suspension/Disconnect: If Client fails to pay the full amount due for any or all of the Services then Provider, at its sole discretion in accordance with applicable law, may suspend or disconnect any or all the Services Client receives.
    3. Reconnection Fees and Related Charges. Should Client wish to resume a Service after any suspension, Provider may require Client to pay a reconnection fee of $10 per person serviced under the contract.
    4. Acceleration. Failure to make payment within the terms herein for more than thirty (30) calendar days will result in acceleration of payments remaining on the contract due immediately.
    5. Collection Costs: If Provider is required to use a collection agency or attorney to collect money owed by Client, Client agrees to pay the reasonable costs of collection. These costs include but are not limited to any collection agency's fees, reasonable attorneys' fees, and arbitration or court costs.
    6. Fees Not Considered Interest or Penalties: Provider does not anticipate that Client will fail to pay for the Services on a timely basis, and does not extend credit to Clients. Any fees, charges, and assessments due to late payment or nonpayment are not interest, credit service charges, finance charges or penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of Provider’s costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when Provider sets such fees, charges, and assessments, because it cannot know in advance: (a) whether Client will pay for the Services on a timely basis, if ever; (b) if Client does pay late, when it will actually pay; and (c) what costs Provider will incur because of Client’s late payment or non-payment.
24. Termination of Services.
1. Notice: Client must provide 60 days’ written notice for termination of this Service Plan, unless stated otherwise in the Agreement. The date of the termination request will be the date of receipt of the notice by Provider. Client will be responsible for the cost of 60 days of service if it fails to provide proper notice prior to the termination of services in addition to any charges incurred under the terms of this Agreement as described herein, including paying out the duration of the current term. Provider may terminate service at any time with sixty (60) days’ written notice to you; provided, that upon your request, Provider will provide you a prorated refund of any amounts that you have paid for the terminated service during the then-current one-year term if there are funds paid to Provider were in excess of what you owe for the remainder of the term. You agree that if this Agreement is terminated as a result of a material default of this Agreement, you will not be entitled to any refund. Upon termination of this Agreement, Provider will stop rendering service immediately.
2. Termination Cost: Client may terminate the Service Plan within 7 calendar days after the Commencement Date without paying out the duration of the term (“Refund Period”). You will be entitled to a refund of any amounts that you have paid for the Service Plan less the intake fee and first month of service based on the one-year term. If the amount paid to Provider does not exceed the amount for the intake fee and first month of service, you agree that no refund will be paid by Provider. If the cancellation occurs within the Refund Period, Provider will refund the unused portion of the fees paid minus $1,000.00 service charge to reformat the data and applications serviced by the Provider under the Service Plan. If the cancellation occurs after the Refund Period, Client is responsible for the full amount of the service term. Provider will not prorate or refund any monies paid by the Client for partial term's service.Client shall provide full payment of the termination cost prior to the last day Provider provides services or the last day of contract term, whichever occurs first. Late charges shall apply for late payments.
3. Software: Client acknowledges that it is responsible for uninstalling any software that was installed for the purpose of carrying out the Services in the Service Plan. In no event shall Provider be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of Client’s use of or inability to use the software installed for carrying out the Services in the Service Plan, even if Client has been advised of the risk of such damages. Under no circumstances shall Provider be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. Provider shall have no liability with respect to the content of said software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information.
4. Fees Not Considered Interest or Penalties: Provider does not anticipate that Client will not fulfill its obligation to pay for the Services for the mutually agreed upon term, and does not extend credit to Clients. Any fees, charges, and assessments due to early termination are not interest, credit service charges, finance charges or penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of Provider’s costs resulting from early termination. These costs will be difficult to calculate or to predict when Provider sets such fees, charges, and assessments because it cannot know in advance what costs Provider will incur because of Client’s decision to terminate the services prematurely and not fulfill its obligation to pay.
25. Terms of Service. Services are subject to the then current Provider’s Terms of Service and any specific product or Service terms listed on www.f8consulting.com/terms.html or any sub-domain, which may be updated from time to time at Provider’s sole discretion and without notice.
26. Authority. Each Party warrants and represents to the other that (i) it has full authority to enter into and perform under this Agreement, (ii) the person signing this Agreement on its behalf is properly authorized; and (iii) it has read the Agreement, understands it, and agrees to be bound by its terms and conditions.
27. Notice. Notice permitted or required by this Agreement shall be deemed effective when delivered to the following addresses:
    For Provider: F8 Consulting, 770 River Road #634, Edgewater, NJ 07020 or via e-mail to billing@f8consulting.com
    For Client: Address listed in the latest Statement of Work or via e-mail to the TCP. Notice to either party sent via United States mail delivery shall be deemed effective when deposited, postage prepaid, in the first class mail of the United States properly addressed to the appropriate party at the addresses set forth in the latest Attachment. Notice to Client via email is deemed effective whether or not it is received by Client and shall be deemed written notice for the purposes of this Agreement.
28. Miscellaneous.
    1. Entire Agreement. The Attachments to this Agreement are hereby made a part of this Agreement and constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. There are no warranties, representations, covenants or agreements, express or implied, between the parties except those expressly set forth in this Agreement.
    2. Assignability. This Agreement and the Services furnished hereunder may not be assigned by Client. Provider may freely assign its rights and obligations under this Agreement with 60 days’ notice to Provider. If Client finds the assignment unacceptable, Client has the right to cancel Service(s) without triggering a Termination Fee by sending notice to Provider within 30 days from the receipt of notice. Failure to cancel Services within 30 days from the receipt of notice will constitute Client’s acceptance of the change.
    3. Modification. Subject to applicable law, Provider has the right to change its equipment, Third Party Providers, product or service terms at its sole discretion and without notice. Provider also may rearrange, delete, add to or otherwise change programming or features or offerings contained in the Services, including but not limited to, content, functionality, hours of availability and Client equipment requirements. Provider may give notice on your invoice, on the Terms and Conditions page on its website (www.f8consulting.com/terms or any sub-domain) or other communication permitted under applicable law.
    4. Force Majeure. Neither the Provider nor the Client shall be liable to each other for any delay or failure to perform its obligations hereunder due to strikes, labor disputes, riots, storms, floods, damage from fire, water, wind, earthquakes, lightning, terrorism, vandalism, burglary, explosions, acts of God or war (a “Force Majeure Event”).
    5. A Party shall give written notice within five (5) days to the other party if it anticipates delay or failure to perform obligations due to a Force Majeure Event.
    6. Paragraph headings, Plural terms, and You. All paragraph headings are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa. “You” and “Your” is used in statements directed at the Client and describes the Client’s rights and obligations.
    7. Disputes. The parties shall be required to attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement as follows:
       1. Before proceeding to litigation, arbitration, or other proceeding by which one party seeks to enforce its rights under this Agreement a senior management executive for both the Provider and the Client shall be required to have a face-to-face meeting to discuss resolution of the issues in dispute.
       2. Litigation which arises from this Agreement shall be governed by the laws of the State of New Jersey without regard to conflict of law principles.
       3. In any litigation or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights under this Agreement, each party shall responsible for their attorney fees, costs and expenses incurred. If both parties receive judgment in any dollar amount, the court will determine the prevailing party, taking into consideration the merits of the claims asserted by each party, the amount of the judgment received by each party and the relative equities between the parties. Both parties agree all legal proceedings related to this Agreement must be filed no later than 90 days from the last day Provider provides service or last day of contract term, whichever occurs first.
    8. No Waiver of Rights. Provider’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
    9. Severability. The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision.
    10. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.