1. Scope of Services; Documents
These General Terms and Conditions ("Terms and Conditions") govern all services that Avrem performs (collectively, “Services”). Specific services will be described in estimates, Managed Services Agreements, or one or more scopes of work provided by Avrem (each, a “Documents”) and once mutually agreed to (either by signing it or by electronic acceptance), those documents will become a part of, and governed under, the terms of these Terms and Conditions. If there is a material difference between the language in a Documents and the language in these Terms and Conditions, then the language of the Documents will control, except in situations involving warranties, limitations of liability or termination of these Terms and Conditions. Under those limited circumstances the terms of these Terms and Conditions will control unless the Documents expressly states that it is overriding the conflicting provisions of these Terms and Conditions.
2. General Requirements
For the purposes of these Terms and Conditions, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored or operated by Avrem pursuant to these Terms and Conditions. Fees are based upon the configuration of System as of the effective date of the applicable Documents. If the System configuration changes for any reason, Avrem may adjust the scope of services and/or the fees charged under the applicable Documents to accommodate those changes.
At all times, all software on the System must be genuine and licensed, and Client agrees to provide Avrem with proof of such licensing upon request. If Avrem requires Client to implement certain minimum hardware or software requirements per a Documents (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of Avrem providing Services.
If patches and other software-related maintenance updates (“Updates”) are to be provided by Avrem under a Documents, Avrem will install the Updates only if Avrem has determined, in its reasonable discretion, that the Updates will be compatible with the particular configuration of the System and materially beneficial to the features or functionality of the applicable software or hardware. Avrem 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.
Third Party Support
If, at Avrem’s discretion, a hardware or software issue requires vendor or OEM support, Avrem may contact the vendor or OEM (as applicable) and pass through, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $250, Avrem will obtain permission before incurring such expenses unless exigent circumstances require otherwise.
From time to time, Avrem may provide Client with specific advice and directions related to our provision of Services or the maintenance or administration of the System. (For illustrative purposes, such advice or directions may include installing cooling mechanisms or environmental controls in a server room, increasing the System’s server or hard drive capacity, replacing obsolete equipment, etc.). Client agrees to promptly follow and implement any directions Avrem provides related to the Services which, depending on the situation, may require additional purchases or investments in the System or the environment in which the System is maintained, at Client’s cost. Avrem will not be responsible for any System downtime caused by failure to promptly follow Avrem’s advice or directions. If failure to follow or implement Avrem’s advice renders part or all Services economically or technically unreasonable in Avrem’s discretion, then Avrem may terminate the applicable Documents for cause by providing notice of termination to Client. Any services required to correct or remediate issues caused by failure to follow Avrem’s advice or directions, as well as any services required to bring the System up to the Minimum Requirements, will be billed at Avrem’s standard hourly rates.
Unless otherwise stated in a Documents, all Services will be performed on a schedule, and in a prioritized manner, as determined by Avrem.
Client understands that Avrem will be entitled to rely on any directions or consent provided by personnel or representatives of Client who are authorized in a Documents to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable Documents, then the Authorized Contact will be the person(s) (i) who signed these Terms and Conditions, and/or (ii) who signed the applicable Documents. If there is any change to Authorized Contact(s) please notify Avrem of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect no more than three (3) business days thereafter.
3. Office Hours
Avrem’s standard hours of operation are between the hours of 9:00 AM and 5:00 PM EST (or EDT, as applicable), Monday through Friday. Avrem considers outside hours support to be between the hours of 5:00 PM and 9:00 AM EST (or EDT, as applicable), Monday through Friday and anytime Saturday and Sunday.
Avrem recognizes, and our offices are closed during, the following holidays:
|New Year's Day
||The Friday before Roman Catholic Easter Sunday
||The last Monday in May
||The first Monday in September
||The fourth Thursday in November
|New Year's Eve
4. Fees; Payment
Client agrees to pay the fees described in each Documents. If the Documents does not include a fee schedule, then Client will be charged on an hourly basis pursuant to Avrem’s standard hourly rates, which will be provided prior to the commencement of Services.
Unless otherwise stated in a Documents, all undisputed fees will be due and payable in arrears of the calendar month in which the Services were provided. For prepaid fees, fees paid pursuant to a service plan, or costs for materials such as hardware or software, payment must be made in advance of work performed or before any materials are ordered (unless other arrangements are expressly stated in the Documents.)
All payments to Avrem are nonrefundable. This includes any setup fees or monthly fees regardless of usage. All billing disputes must be reported within thirty (30) days of the time the dispute occurred.
Fees not received on or before the due date on the invoice will be subject to interest on the unpaid amount(s) up to and including the date payment is received, at a rate of 1.5% per month or the maximum allowable rate of interest permitted by applicable law. Client will pay all expenses, including actual attorneys’ fees, incurred by Avrem in enforcing its rights under these Terms and Conditions provided that Avrem is successful on the merits. Avrem reserves the right, but not the obligation, to suspend part or all Services without prior notice in the event that any portion of undisputed fees are not timely received by Avrem. Payment of an invoice indicates Client’s final acceptance of the Services and/or deliverables described in that invoice. A re-connect fee may be charged in the event that Avrem suspends the Services due to nonpayment.
Client hereby grants to Avrem the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System for the purpose of enabling Avrem to provide Services. The foregoing right of access is granted to Avrem on a 24x7x365 basis, unless otherwise expressly stated in a Documents. It is the Client’s responsibility to secure, at their own cost and prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permissions necessary for Avrem to provide Services to the System or the designated premises. Proper and safe environmental conditions must be provided and assured at all times. Avrem shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.
6. Limited Warranties; Limitations of Liability
a. Hardware / Software Purchased Through Avrem
Unless otherwise stated in a Documents, all hardware, software, peripherals or accessories purchased through Avrem (“Third-Party Products”) are nonrefundable once the materials have been ordered by Avrem. Avrem will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and Avrem 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 Documents, all Third-Party Products are provided “as is” and without any warranty whatsoever as between Avrem and Client (including but not limited to implied warranties).
b. Warranty Application
Notwithstanding any provision to the contrary in these Terms and Conditions, any warranty provided by Avrem shall be deemed null and void if the applicable hardware or product is (i) altered, modified or repaired by persons other than Avrem, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Avrem; (ii) misused, abused, or not operated in accordance with the specifications of Avrem or the applicable manufacturer or creator of the hardware or product, or, (3) subjected to improper site preparation or maintenance by persons other than Avrem or persons approved or designated by Avrem.
c. Liability Limitations
This paragraph limits the liabilities arising under these Terms and Conditions or any Documents and is a bargained-for and material part of these Terms and Conditions. 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 Avrem), savings, or other indirect or contingent event-based economic loss arising out of or in connection with these Terms and Conditions, any Documents, 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 these Terms and Conditions or any Documents, even if a party has been advised of the possibility of such damages. Except for Client payment obligations and indemnification obligations described in these Terms and Conditions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to these Terms and Conditions (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by Client to Avrem 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 limitation shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
Client agrees to indemnify, defend and hold Avrem 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, breach of these Terms and Conditions, or which relate to any act or omission undertaken or caused by Client. 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. Avrem will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this Section (6). No claim for which indemnity is sought by Avrem will be settled without Avrem’s prior written consent, which shall not be unreasonably delayed or withheld.
8. Term; Termination
This Agreement will begin as of the effective date above and will continue until terminated as described in this Section (7). Additionally, each Documents will have its own term, and will be terminated only as provided herein, unless otherwise expressly stated in the applicable Documents. The termination of one Documents shall not, by itself, cause the termination of (or otherwise impact) the status or progress of any other Documents between the parties.
a. Termination Without Cause
Unless otherwise agreed by the parties in writing, no party will terminate a Documents without cause prior to the Documents’s natural expiration date. If Client terminates a Documents without cause, they will be responsible for paying the early termination fee described in the applicable Documents. If no early termination fee is listed, then prior to the effective date of termination of the Documents or these Terms and Conditions (as applicable) without cause, you agree to pay Avrem an amount equal to (i) all expenses incurred by Avrem in its preparation and provision of the Services, e.g., licensing fees incurred by Avrem, non-mitigatable hard costs (“Hard Costs”), accumulated labor, etc. as well as (ii) one hundred percent (100%) of all fees that would have been paid to Avrem 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 Documents or under these Terms and Conditions, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately these Terms and Conditions or the relevant Documents (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 thirty (30) days (or ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If Avrem terminates these Terms and Conditions or any Documents For Cause, then Avrem shall be entitled to receive, and Client hereby agrees to pay to Avrem, (i) all amounts that would have been paid to Avrem had these Terms and Conditions or Documents (as applicable) remained in effect, and (ii) all Hard Costs. If Client terminates these Terms and Conditions or a Documents for cause, they will be responsible for paying only for those services that were properly delivered and accepted up to the effective date of termination.
c. Client Activity as a Basis for Termination
In the event that any Client-supplied equipment, hardware or software, or any action undertaken by Client, causes the System or any part of the System to malfunction or requires remediation by Avrem (“System Malfunction”), and (i) Client fails to remedy, repair or replace the System Malfunction as directed by Avrem (or you fail to cease the activity causing the System Malfunction, as applicable), or (ii) Client or any staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services, then Avrem will have the right, upon ten (10) days prior written notice to Client, to terminate these Terms and Conditions or the applicable Documents For Cause or, at Avrem’s discretion, amend the applicable Documents to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction, or adjust the fees in the applicable Documents.
Avrem and the Client may mutually consent, in writing, to terminate a Documents or these Terms and Conditions at any time.
e. Equipment / Software Removal
Upon termination of these Terms and Conditions for any reason, Client will provide Avrem with access, as necessary, to Client premises or any other locations at which Avrem-owned equipment or software (collectively, “Avrem Equipment”) is located to enable removal of all Avrem Equipment from the premises. Failure or refusal to grant Avrem access as described herein, or if any of the Avrem Equipment is missing, broken or damaged (normal wear and tear excepted), Avrem will have the right to invoice for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
f. Transition; Deletion of Data
In the event that Client requests Avrem’s assistance to transition to a new service provider, Avrem will provide such assistance if (i) all fees due and owing to Avrem are paid in full prior to Avrem providing its assistance, and (ii) you agree to pay Avrem our standard hourly rates for such assistance, with up-front amounts to be paid to Avrem as may be required. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly stated in a Documents, Avrem will have no obligation to store or maintain any Client data in Avrem’s possession or control beyond fifteen (15) calendar days following the termination of these Terms and Conditions. Avrem will be held harmless for, and indemnified by Client against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Avrem’s deletion of data beyond the time frames described in this Section (7f).
9. Response; Reporting
Avrem warrants and represents that Avrem will provide the Services, and respond to any notification received by Avrem of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in an applicable Documents (“Response Time”), except for (i) those periods of time covered under the Onboarding Exception (defined below), or (ii) periods of delay caused by Client-Side Downtime (defined below), or (iii) periods in which Avrem is required to suspend the Services to protect the security or integrity System or Avrem’s equipment or network, or (iv) delays caused by a force majeure event.
i) Scheduled Downtime: For the purposes of these Terms and Conditions, Scheduled Downtime will mean those hours, as determined by Avrem but which will not occur between the hours of 9:00 AM and 5:00 PM EST (or EDT, as applicable), Monday through Friday without authorization or unless exigent circumstances exist, during which time Avrem will perform scheduled maintenance or adjustments to its network. Avrem will use its best efforts to provide at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
ii) Client-Side Downtime: Avrem 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 Client’s actions or omissions (“Client-Side Downtime).
iii) Onboarding Exception: Client acknowledges and agrees that for the first thirty (30) days following the commencement date of a Documents, the Response Time commitments described in these Terms and Conditions will not apply to Avrem, it being understood that there may be unanticipated downtime or delays due to Avrem’s initial startup activities (the “Onboarding Exception”).
For the purposes of these Terms and Conditions, Confidential Information means any and all non-public information provided to Avrem, including but not limited to customer data, customer lists, internal documents, financial statements, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of Avrem, (ii) was developed independently by Avrem, or (iii) is or was lawfully and independently provided to Avrem prior to disclosure by Client, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
Avrem will keep Confidential Information confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by Client in writing, or (ii) as needed to fulfill Avrem’s obligations under these Terms and Conditions. If Avrem is required to disclose Confidential Information to any third party as described in part (ii) of the preceding sentence, then Avrem 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 (9b).
c. Due Care
Avrem will exercise the same degree of care with respect to the Confidential Information it receives as Avrem 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 Avrem is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Avrem will immediately notify Client in writing of such requirement so that Client may seek a protective order or other appropriate remedy and/or waive Avrem’s compliance with the provisions of this Section (9d). Avrem will use its best efforts, at Client’s expense, to obtain or assist Client in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Avrem may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Avrem has been advised by written opinion of counsel reasonably acceptable to Avrem that it is legally compelled to disclose.
11. Third Party Services
Portions of the Services may require acceptance by Client 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 these Terms and Conditions. Client agrees 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, Avrem is required to comply with a third-party EULA and the third-party EULA is modified or amended, Avrem reserves the right to modify or amend any applicable Documents to ensure continued compliance with the terms of the third-party EULA.
b. Third Party Services
Portions of the Services may be acquired from, or rely upon the services of, third party manufacturers or providers, such as data hosting services, domain registration services, and data backup/recovery services (“Third Party Service”). Avrem will not be responsible, and will be held harmless, for the failure of any third-party provider or manufacturer to provide Third Party Services to Avrem or Client.
c. Data Loss and Backups
Data loss can happen at any time. Under no circumstances will Avrem 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) Avrem’s failure to backup or secure data even if the that failure was due to negligence of Avrem or any of its employees or agents
d. Attached Devices
You hereby represent and warrant that Avrem 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/or (ii) have been designated to receive the Services, regardless of whether such device(s) are owned, leased or otherwise controlled by Client. Unless otherwise stated in a Documents, 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 these Terms and Conditions or any Documents shall be deemed to convey or grant any ownership rights in one party’s Intellectual Property to the other party.
If the parties are unable to resolve a dispute informally, the dispute will be settled by final and binding arbitration. The arbitration will be initiated and conducted according to the JAMS Comprehensive Arbitration Rules and Procedures (except as modified herein) including the Optional Expedited Arbitration Procedures and Optional Appeal Procedure, in effect at the time the request for arbitration is made (the "Rules"). In the event of any inconsistency between the Rules and the procedures set forth below, the procedures set forth below will control. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, enforceability or formation of these Terms and Conditions including, but not limited to any claim that all or any part of the Agreement is void or voidable. The arbitration shall be heard by a single arbitrator, to be selected by the parties and experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, JAMS shall select the arbitrator. The arbitration shall take place in the venue described in Section 13, below. The arbitrator shall determine the scope of discovery in the matter, however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.
Neither these Terms and Conditions nor any Documents 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, legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, Avrem 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 Avrem, or any other transaction in which ownership of more than fifty percent (50%) of Avrem’s voting securities are transferred; provided, however, that such assignee expressly assumes Avrem’s obligations hereunder.
No amendment or modification of these Terms and Conditions or any Documents will be valid or binding upon the parties unless such amendment or modification is originated in writing by Avrem, specifically refers to these Terms and Conditions, and is accepted in writing by an Authorized Contact.
c. Time Limitations
The parties mutually agree that any action for any matter arising out of these Terms and Conditions or any Documents (except for issues of nonpayment by Client) must be commenced within three (3) months after the cause of action accrues or the action is forever barred.
If any provision hereof or any Documents 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 these Terms and Conditions or any Documents will be valid and enforceable to the fullest extent permitted by applicable law.
e. Other Terms
Avrem 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 Documents.
f. No Waiver
The failure of either party to enforce or insist upon compliance with any of the terms and conditions of these Terms and Conditions, the temporary or recurring waiver of any term or condition of these Terms and Conditions, 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 Documentss, 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 these Terms and Conditions or Documents will act only to provide illustrations or descriptions of Services to be provided, and will not act to modify these Terms and Conditions or provide binding contractual language between the parties. Avrem will not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
i. Force Majeure
Avrem will not be liable for delays or failures to perform Avrem’s obligations under these Terms and Conditions or any Documents because of circumstances beyond Avrem’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by Client, or 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, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
Client acknowledges and agrees that during the term of these Terms and Conditions and for a period of one (1) year following the termination of these Terms and Conditions, they will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Avrem’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Avrem, or recruit, solicit or otherwise influence any employee or agent of Avrem to discontinue such employment or agency relationship with Avrem. In the event that you violate the terms of the restrictive covenants in this Section (13i), you acknowledge and agree that the damages to Avrem would be difficult or impracticable to determine, and agree that in such event, as Avrem’s sole and exclusive remedy therefore, you will pay Avrem as liquidated damages and not as a penalty an amount equal to one hundred percent (100%) of that employee or subcontractor’s first year of base salary with you (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to any of Avrem’s employees by you will be deemed to be a material breach of these Terms and Conditions, in which event Avrem shall have the right, but not the obligation, to terminate these Terms and Conditions or any then-current Documents immediately For Cause.
The provisions contained in these Terms and Conditions that by context are intended to survive termination or expiration of these Terms and Conditions will survive.
Avrem and Client will each maintain, at each party’s own expense, all insurance reasonably required in connection with these Terms and Conditions or any Documents, including but not limited to, workers compensation and general liability. Avrem agrees to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. All of 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.
m. Governing Law; Venue
This Agreement and any Documents will be governed by, and construed according to, the laws of the state of Ohio. Client hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Mahoning County, Ohio, for any and all claims and causes of action arising from or related to these Terms and Conditions. CLIENT AND AVREM AGREE THAT EACH OF US WAIVES ANY RIGHT TO A TRIAL BY JURY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING FROM OR RELATED TO THIS AGREEMENT.
n. No Third-Party Beneficiaries
The Parties have entered into these Terms and Conditions solely for each other’s own benefit and intend no third party to be able to rely upon or enforce these Terms and Conditions or any part of these Terms and Conditions.
o. 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 these Terms and Conditions will be used to modify, interpret, supplement, or alter in any manner the terms of these Terms and Conditions.
p. Business Day
If any time period set forth in these Terms and Conditions expires on a day other than a business day in Mahoning County, Ohio, such period will be extended to and through the next succeeding business day.
q. Notices; Writing Requirement
Where notice is required to be provided to a party under these Terms and Conditions, such notice may be sent by U.S. mail, overnight courier, 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 other overnight courier, or one (1) day after notice is delivered 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 Client to Avrem regarding (a) any alleged breach of these Terms and Conditions by Avrem, or (b) any request for indemnification, or (c) any notice of termination of these Terms and Conditions or any Documents, must be delivered to Avrem by U.S. mail, unless such requirement is expressly and specifically waived by Avrem. All electronic documents and communications between the parties will satisfy any “writing” requirement under these Terms and Conditions.
r. Independent Contractor
Each party is an independent contractor of the other, and neither is an employee, partner or joint venture of the other.
Generally, Avrem does not utilize subcontractors; however, should Avrem elect to subcontract a portion of the Services, Avrem shall guarantee all work performed by any Avrem-designated subcontractor as if Avrem performed the subcontracted work itself.
t. Data Access/Storage
Depending on the Service provided, Client data may occasionally be accessed or stored on secure servers located outside of the United States. Client agrees to notify Avrem in the event that your company requires modification of our standard access or storage procedures.
u. Attorneys' Fees
If Avrem is required to bring an action to enforce the terms of these Terms and Conditions, Avrem shall be entitled to an award of the reasonable attorneys’ fees and costs that it incurred at all stages of the action, including without limitation, at trial and appeal.
The parties may sign and deliver these Terms and Conditions and any Documents 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 these Terms and Conditions (or any Documents) 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.
No prior versions available.