This Agreement is entered into by and between you (hereinafter “Client”) and Trapp Technology, LLC (hereinafter “Trapp Technology”) as of the date the agreement is signed; which is the date of acceptance by Client.
Whereas Trapp Technology, maintains or has access to equipment, computer hardware, computer software, and further has a connection to the Internet, and is in the business of application hosting for said Client, via the World Wide Web service of the internet; and Whereas, Client wishes to obtain the services of Trapp Technology as herein provided on the conditions and based on the limitations herein stated;
Now, therefore, in consideration of the covenants and conditions provided in this Agreement, Trapp Technology and Client hereby agree as follows:
1.01 Trapp Technology shall enable Client to access, maintain, and store their application and application data in Client’s Software application format, on Trapp Technology’s Host Computer(s) (hereinafter referred to as “Hosting Services”).
1.02 Trapp Technology shall also provide Information Technology support (hereinafter referred to as “IT Support”), which can be accessed by telephone, email, and instant message between the business hours posted on our website. Additionally, IT Support will be on call during non-business hours. Trapp Technology will make the best effort to return those calls.
1.03 It is expressly agreed for purposes of establishing the frequency of Hosting Services that Client understands the frequency period for hosting is monthly.
1.04 Trapp Technology does not provide any modem, computer, or any other equipment or system for Client to connect to the Internet. Client is responsible for its modems, computers, operating systems and connection devices (hereinafter referred to as “Client’s Equipment”) necessary for connecting to the Internet through which Client can access the Hosting Services provided by Trapp Technology. Client is also responsible for all IT Support involving Client’s equipment.
1.05 Trapp Technology shall have the right, but not the obligation to upgrade its hardware, software and services provided to Client.
1.06 Trapp Technology shall have the right without any limitation, but no obligation, to transmit any information, letter, memorandum, documentation or advertisement, or any data to Client.
1.07 Trapp Technology shall also provide daily backup of Client data stored for a period of seven (7) days. Trapp Technology will locate and restore Client data within a period of 48 hours. Client, at an additional charge may also request emergency service, within 8 hours.
1.08 Trapp Technology will use industry standard practices to determine whether server hardware is functioning properly and will replace non-functioning hardware with similarly functioning hardware. Trapp Technology guarantees hardware replacement within one business day from the time the problem is identified.
1.09 Trapp Technology provides service for at least 99.5% Network Availability. Network Availability is defined as the ability to pass incoming and outgoing TCP/IP traffic through the Company’s network to/from the IP transit provider (Internet backbone).
1.10 Servers unavailability resulting from loss of Network Availability is excluded from servers availability calculations if the Network Availability loss is caused by any factor(s) beyond Trapp Technology’s control, including but not limited to such factors as IP transit provider (backbone) or end user’s portion of the network (commonly known as “last mile”) failure, denial of service or similar attacks directed at Trapp Technology’s servers or Trapp Technology’s network.
1.11 Trapp Technology will exercise industry standard practices to ensure that all pre-installed software is correctly configured. In case there is more than one way to configure the software, Trapp Technology will choose the configuration it determines, in its sole discretion, to be the most appropriate.
1.12 Trapp Technology will install security patches, updates, and service packs as soon as practical. Software updates may change system behavior and functionality and as such may negatively affect applications. Trapp Technology cannot foresee nor can it be held responsible for service disruption or changes in functionality or performance due to implementation of software patches and upgrades. If such disruption or changes occur, Trapp Technology will provide its best efforts to remedy the situation as soon as possible after being notified of the problem by Customer.
1.13 Trapp Technology may be required by its software licensors to upgrade to the latest versions of the software. Licensor-required upgrades will be performed on a fee for service basis and upon reasonable notice to Customer. Software upgrades on Trapp Online’s servers will occur at Trapp Online’s discretion upon reasonable notice to Customer.
1.14 Trapp Technology is not responsible for problems that may arise from incompatibilities between new versions of the software and content, regardless of whether it was a requested, required or a discretionary upgrade. Nevertheless, Trapp Technology will provide its best efforts to help Customer to find a workaround solution.
1.15 Trapp Technology will be responsible for maintaining current licenses with its server software vendors. These vendors include but are not limited to Microsoft SPLA licensing and VMware VSPP licensing.
Periodically, Trapp Technology may adopt its own rules of conduct (hereinafter referred to as “Trapp Technology’s Rules of Conduct”), which may be amended at any time by Trapp Technology. Trapp Technology’s Rules of Conduct shall be provided to Client by e-mail at least thirty (30) days prior to its effective date. Client hereby agrees and promises to observe and comply with Trapp Technology’s Rules of Conduct for so long as this Agreement is in effect.
Trapp Technology reserves the right to refuse to provide Services to any person, individual or entity for any reason or for no reason at all.
Client agrees that it shall be responsible for providing and maintaining its own Internet access and all necessary Client Equipment at Client’s location necessary for accessing the Trapp Technology system through the Internet. Client agrees to notify Trapp Technology of any changes in the Client Equipment, including any system configuration changes or any hardware or software upgrades, which may affect the Hosting Services provided hereunder.
The Trapp Technology system is only to be used for lawful purposes. Client agrees not to knowingly transmit, re-transmit or store materials on or through the Trapp Technology system or the software that are harmful to the Trapp Technology system or software, or in violation of any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others.
To the extent that certain components of the software may be downloaded to Client’s or User’s computer as a result of accessing the software as part of the Hosting Services, Trapp Technology grants Client a non-exclusive, non-transferable, limited license, with right to sublicense solely to Users, to use such Software only in connection with the Hosting Services. Neither Client nor Users are otherwise permitted to use the software, nor will Client or Users disassemble, decompile or otherwise attempt to discern the source code of such software. Client agrees that, except as expressly set forth in this Section, it will not rent, lease, sublicense, re-sell, time-share or otherwise assign to any third party this Agreement or any of Client’s rights or licenses to access the software or the Trapp Technology system, nor shall Client use, or authorize others to use, the software, Hosting Services or the Trapp Technology System to operate a service bureau.
4.01 “Confidential Information” means any and all information, which is of a confidential, proprietary or trade secret nature that is furnished or disclosed by one party to the other party under this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the specific business terms of this Agreement, Subscriber Materials, and any other information that is marked as “Confidential,” “Proprietary,” “Trade Secret,” or in some other manner to indicate its confidential, proprietary or trade secret nature.
4.02 Confidential Information will remain the property of the disclosing party, and the other party will not be deemed by virtue of its access to the other party’s Confidential Information to have acquired any right or interest in or to any such Confidential Information, other than as specifically set forth herein. The receiving party agrees: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to the receiving party’s own employees, agents or authorized consultants having a need to know the Confidential Information for the purposes of this Agreement; (iii) not to disclose any Confidential Information to any third party; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; and (v) to notify the disclosing party promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist the disclosing party in every reasonable way to stop or minimize such unauthorized use or disclosure.
4.03 The obligations of either party under this Section 4 will not apply to information that the receiving party can demonstrate: (i) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party; (ii) is independently developed by the receiving party without regard to the Confidential Information of the other party; or (iii) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall attempt to furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.
4.04 The parties agree that any breach of this Section 4 may cause the disclosing party substantial and irreparable damages; therefore, if the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section 4, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive and equitable relief.
Trapp Technology warrants and represents to Client that (i) the software will perform substantially in accordance with the documentation, if any, provided by Trapp Technology to Client, and (ii) the Hosting Services will be performed in a professional and workmanlike manner. In the event of Downtime (as defined in this Section below), as Client’s sole and exclusive remedy and Trapp Technology’s sole and exclusive liability, the monthly fee payable for the Hosting Services shall be reduced as follows:
a) For the first sixty (60) minutes of Downtime during Normal Business Hours or the first four (4) hours of Downtime outside of Normal Business Hours (“Initial Downtime”), Trapp Technology will credit Client’s account for one (1) day of service.
b) For each eight (8) hour period of Downtime per day in addition to the Initial Downtime, Trapp Technology will credit Client’s account for one (1) additional day of service.
For the purposes of this Agreement, “Downtime” shall mean any interruption in the availability of Hosting Services to Client (excluding scheduled interruptions of which Client is notified 48 hours in advance), only if such interruption is due either to: 1) an error in the software, or 2) failure of the Trapp Technology system (not including problems associated with Internet connectivity). Downtime begins upon Client notification to Trapp Technology of the interruption, either by speaking directly with a Trapp Technology customer service representative or recording a voicemail message in the Trapp Technology customer service voicemail box, and continues until the availability of the Hosting Services is restored to the Client. For purposes of this Agreement, “Normal Business Hours” shall mean between the hours of 7:00 a.m. to 7:00 p.m., Arizona time, Monday through Friday, excluding national holidays. In the event of a breach (other than Downtime) of the warranty set forth in the Section above, Client’s sole and exclusive remedy, and Trapp Technology’s sole and exclusive liability shall be, at Trapp Technology’s option, repair or replacement of the software.
THE FOREGOING CONSTITUTES CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND TRAPP ONLINE’S ENTIRE LIABILITY, FOR DOWNTIME AND FOR BREACH OF THE HOSTING SERVICES WARRANTY PROVIDED IN THIS SECTION.
EXCEPT AS PROVIDED IN THE SECTIONS ABOVE, (A) THE HOSTING SERVICES ARE PROVIDED, AND THE SOFTWARE AND THE TRAPP ONLINE SYSTEM ARE MADE AVAILABLE, BY TRAPP ONLINE TO CLIENT “AS IS,” AND (B) TRAPP ONLINE AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE HOSTING SERVICES, THE SOFTWARE OR THE TRAPP ONLINE SYSTEM, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.
Without limiting the express warranties set forth in this Agreement, Trapp Technology does not warrant that the software, the Trapp Technology system or the Hosting Services will meet Client’s requirements (except as provided above) or that Client’s access to and use of the software, the Trapp Technology system or the Hosting Services will be uninterrupted or free of errors or omissions. Trapp Technology cannot and does not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through, or stored in any system connected to the Internet. Trapp Technology will use commercially reasonable efforts to adequately maintain, and upgrade as necessary, the Trapp Technology system to provide the Hosting Services to its customers. However, except as expressly set forth herein, Trapp Technology shall not be responsible for any delays, errors, failures to perform, or disruptions in the Hosting Services caused by or resulting from any act, omission or condition beyond Trapp Technology’s reasonable control.
LIMITATION OF LIABILITY: IN NO EVENT SHALL TRAPP TECHNOLOGY BE LIABLE TO CLIENT FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF TRAPP TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Trapp Technology’s entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence or otherwise, shall in no event exceed an amount equal to the price paid for the Services out of which the claim arose.
INDEMNIFICATION: Subject to the limitations set forth in this Section, Trapp Technology will defend any third-party suit or action against Client to the extent such suit or action is based on a claim that the software or the Trapp Technology system infringes any valid United States patent, copyright, trade secret or other proprietary right, and Trapp Technology will pay those damages and costs finally awarded against Client in any monetary settlement of such suit or action which are specifically attributable to such claim. These obligations do not include any claims to the extent they are based on use of the software or Trapp Technology system in violation of this Agreement or in combination with any other software or hardware, or any modification to the software or Trapp Technology system pursuant to Client’s specifications. If any portion of the software or Trapp Technology system becomes, or in Trapp Technology’s opinion is likely to become, the subject of a claim of infringement, then Trapp Technology may, at its option and expense, (a) procure for Client the right to continue using such software or the Trapp Technology system, or (b) replace or modify the software or the Trapp Technology system so that it becomes non-infringing. The indemnity obligations set forth in this Section are contingent upon: (i) Client giving prompt written notice to Trapp Technology of any such claim(s); (ii) Trapp Technology having sole control of the defense or settlement of the claim; and (iii) at Trapp Technology’s request and expense, Client cooperating in the investigation and defense of such claim(s). THE FOREGOING STATES Trapp Technology’s ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
This agreement may be modified at any time by Trapp Technology or in order to comply with any local, national or international laws, rules or regulations, with notice of such modification to Client. Notice may be sent to Client via e-mail, fax or regular mail at least thirty (30) days prior to its effective date.
This agreement shall be valid from the date Client agrees with its terms by expressing Client’s acceptance which will be done by signature of this agreement and transmitted electronically via computer, or a hardcopy either mailed or hand delivered to a representative of Trapp Technology and shall continue until such time as either Trapp Technology or Client give 30 day notice of termination of this Agreement; notice must be given electronically via computer or hand written and then mailed or hand delivered to a representative of Trapp Technology.
Upon receipt of termination letter, Trapp Technology will contact the client within 48 hours to transfer both software and data to clients requested location. This will be handled via the interenet and limited support will be give to the client. Limited support is defined as; moving the clients data to the requested location and answer questions for the client in the installation of their software. Note: The client will also be requested to fill out an exit survey.
TERMS: The billing cycle commences from the date the contract is signed. Client will be billed at the time client is setup and has been given login information.
Client agrees to pay all fees and charges in conjunction with the establishment, use and maintenance of the Services pursuant to the Payment Authorization Form. Trapp Technology reserves the right to amend or change the service fees and charges with notice to Client of no less than thirty (30) days before its effective date. Client agrees to pay all fees and charges by way of monthly electric funds transfer or credit card payment. Trapp Technology agrees to submit invoices to client on a monthly basis at the request of the client.
Trapp Technology accepts most major credit cards and Automated Clearing House (ACH) transfers for payment. At the commencement of the contract, Trapp Technology will collect your credit card or ACH information on the Payment Authorization Form signed by Client.
All payments by credit card or ACH that result in a denial of charges, are subject to a 15% finance charge, and if not paid within 15 days of notification by Trapp Technology are subject to disconnection of services. A $95.00 reinstatement fee will apply. Please address all accounting issues to firstname.lastname@example.org.
9.01 ARBITRATION: Any dispute arising under, or in connection with, this Agreement, or any other aspect of the relationship between the parties herein shall be submitted to and settled by arbitration in accordance with the rules of the American Arbitration Association then in effect, and the forum for such arbitration will be in Phoenix, Arizona.
9.02 ATTORNEYS FEES: in any such proceedings, or any other or further proceedings instituted by one party hereto against the other with respect to any controversy or matter arising out of this Agreement, or in connection with the relationship of the Parties herein, the prevailing party shall be entitled to recover from the non-prevailing party such prevailing party’s reasonable attorneys’ fees and costs of suit incurred in connection with such proceedings, and the non-prevailing party shall be solely liable to pay any arbitrators’ fees.
9.03 NOTICES: Any notice required or permitted to be given hereunder shall be deemed duly given if said notice is transmitted by either certified mail, fax or e-mail.
9.04 INTEGRATION: This Agreement is the entire agreement between the Parties herein with respect of the subject matter hereof and supersedes all prior agreements between them with respect thereto.
9.05 BINDING EFFECT: The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns.
9.06 HEADINGS: The Headings of the paragraphs of this Agreement are inserted solely for convenience of reference, and in no way define, describe, limit, extend, or aid in the construction of the scope, extent or intent of this Agreement or of any term or provision thereof.
9.07 GENDER: Where the context so requires, the use of the masculine gender shall include the feminine and the singular shall include the plural, and vice versa, and the word “person” or “party” shall include a corporation, firm, partnership or other form of association.
9.08 SEVERABILITY: In the event that any provision or any portion of any provision contained in this Agreement is unenforceable, the remaining portions of such provision shall nevertheless be carried into effect.
9.09 APPLICABLE LAW: The Agreement shall be governed by and shall be construed in accordance with the laws of the State of Arizona.
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