This Service Attachment is between Fothion Inc. (sometimes referred to as “Fothion,” “Provider,” “we,” “us,” or “our”), and the Customer found on the applicable Order (sometimes referred to as “Client,” “you,” or “your”) and, together with the Order, Master Services Agreement, Schedule of Services, and other relevant Service Attachments, forms the Agreement between the parties the terms to which the parties agree to be bound.
The parties further agree as follows:
Tax Responsibilities and contract accepted Currency.
All prices for Plans provided by FOTHION to Customers are U.S. dollars. Customers shall be responsible for paying all taxes of any nature which becomes due regarding FOTHION services, except for taxes on FOTHION’s income, irrespective of which party may be responsible for reporting or collecting such taxes.
ORDER ACCEPTANCE, PAYMENT:
All orders are subject to acceptance by FOTHION. An order will be deemed accepted by FOTHION when written confirmation of the order is sent to the Customer. FOTHION may refuse to accept any order, or delay acceptance pending fulfillment of conditions of this Agreement by Customer. Initial order payments must be received along with a signed order and service agreement prior to the commencement of service.
Payment and Terms:
Payment shall be made in U.S. dollars to FOTHION or as maybe otherwise agreed to in writing by. Payments are due upon receipt of the invoice but in no event later than thirty (30) days after receipt of the invoice. If due to bank charges, transfer fees, or the like, FOTHION should receive less than its invoice amount, FOTHION will re-invoice Customer for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by FOTHION within thirty (30) days after presentation, FOTHION may impose a debt service charge amounting to one percent (1%) of the overdue amount remains unpaid. If any amount remains unpaid forty-five (45) days after presentation of invoice, FOTHION may discontinue, withhold, or suspend services to Customer and/or its customer(s) to whom such unpaid amounts relate; provided, FOTHION provides Customer fifteen (15) day written notice and opportunity to cure. All discounts on all outstanding invoices are null and void.
DUTIES OF FOTHION:
FOTHION will notify customer of any changes, findings, or needed enhancements that are necessary by email communication.
Should the customer request an itemized list; only then, a written report will be provided.
FOTHION will perform any additional Service needed beyond the agreed Monthly Service Hours, by customer’s written request only.
All additional services provided by FOTHION are billable beyond the Monthly Service Hours.
FOTHION will change any configuration as FOTHION sees fit to enhance the overall performance and/or security of the network.
RULES AND REGULATIONS:
FOTHION may impose reasonable rules and regulations regarding the use of its services from time to time. Customers shall impose such rules and regulations on its employees to the extent necessary to ensure compliance.
LIMITATION OF FOTHION’S OBLIGATIONS AND LIABILITY:
FOTHION will utilize its best efforts to maintain an acceptable level of performance of the services contracted for, but FOTHION makes absolutely no warranties whatsoever, expressed, or implied, including the warranty of merchantability or fitness for a particular purpose. FOTHION cannot guarantee continuous service, service at any time, or integrity of data stored or transmitted via its system or via the Internet. FOTHION shall not be liable to Customer or any of its customers for any claims or damages which may be suffered by Customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from system failure, the loss of data, ransomware attack, email fishing or spoofing, and Any other form of cyber-attacks and/or system hacking, inability to access the Internet or inability to transmit or receive information caused by, or resulting from, delays, non-deliveries, or service interruptions.
In no event shall FOTHION be liable to Customer or its customers or any other person and/or entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if FOTHION has been advised of the possibility of such damage.
Customer will take all necessary measures to preclude FOTHION from being made a party to any lawsuit or claim regarding FOTHION services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless FOTHION from any, and all claims or whatever nature brought by any of Customer’s customers against FOTHION.
DISCLAIMER OF WARRANTY
FOTHION DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT FOTHION WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICE WILL BE COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE TEMPORARY LOSS OF SERVICE AVAILABILITY. FOTHION IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER’S CONTENT OR THIRD-PARTY CONTENT, OR SERVICES PROVIDED BY THIRD PARTIES. FOTHION SHALL HAVE NO OBLIGATION WITH RESPECT TO A WARRANTY CLAIM (i) IF NOTIFIED OF SUCH A CLAIM AFTER THE WARRANTY PERIOD OR (ii) IF THE CLAIM IS THE RESULT OF THIRD-PARTY HARDWARE OR SOFTWARE FAILURES, OR THE ACTIONS OF CUSTOMER OR A THIRD PARTY. FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND
FOTHION’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF FOTHION CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE DEFICIENT SERVICES AND FOTHION WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT CUSTOMER PRE-PAID TO FOTHION FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.TO THE EXTENT NOT PROHIBITED BY LAW, CUSTOMER ACKNOWLEDGES THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS BY THE FOTHION OR ANY THIRD-PARTY VENDORSINCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS, OR FOR MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND THAT THOSE THIRD-PARTY VENDORSDISCLAIM ANY AND ALL LIABILITY, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE SERVICES.
FOTHION MAY LINK TO OR OFFER THIRD-PARTY SERVICES FOR RESALE. ANY PURCHASE, ENABLING, OR ENGAGEMENT OF THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO IMPLEMENTATION, CUSTOMIZATION, CONSULTING SERVICES, E-MAIL, WEB HOSTING, SERVER HOSTING, PHONE SERVICE, AND ANY EXCHANGE OF DATA BETWEEN CUSTOMER AND ANY THIRD-PARTY SERVICE, IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD-PARTY SERVICE Provider AND IS SUBJECT TO THE TERMS AND CONDITIONS OF SUCH THIRD-PARTY Service Provider. FOTHION DOES NOT WARRANT THIRD-PARTY SERVICES AND IS NOT RESPONSIBLE OR LIABLE FOR SUCH SERVICES OR ANY LOSSES OR ISSUES THAT RESULT FROM CUSTOMER’S USE OF SUCH SERVICES. IF CUSTOMER PURCHASES, ENABLES, OR ENGAGES ANY THIRD-PARTY
SERVICE FOR USE IN CONNECTION WITH THE SERVICES, CUSTOMER ACKNOWLEDGES THAT FOTHION MAY ALLOW THIRD-PARTY SERVICES PROVIDERS TO ACCESS CUSTOMER DATA USED IN CONNECTION WITH THE SERVICES AS REQUIRED FOR THE INTEROPERATION OF SUCH THIRD-PARTY SERVICES WITH THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER’S USE OF ANY THIRD-PARTY SERVICE SIGNIFIES CUSTOMER’S INDEPENDENT CONSENT TO THE ACCESS AND USE OF CUSTOMER’S DATA BY THE THIRD-PARTY SERVICE PROVIDER, AND THAT SUCH CONSENT, USE, AND ACCESS IS OUTSIDE OF FOTHIONS’S CONTROL. FOTHION WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY DISCLOSURE, MODIFICATION, OR DELETION OF DATA RESULTING FROM ANY SUCH ACCESS BY THIRD-PARTY SERVICE PROVIDER.
LIMITED WARRANTY:
FOTHION, INC. WARRANTS TO CUSTOMER THAT THE SERVICES, ANALYSIS, MATERIAL, AND SOFTWARE DELIVERED HEREUNDER WILL BE OF THE KIND AND QUALITY DESIGNATED AND WILL BE PERFORMED BY QUALIFIED PERSONNEL. SPECIAL REQUIREMENTS FOR STANDARDS OR FORMAT TO BE FOLLOWED SHALL BE ATTACHED AS AN ADDITIONAL EXHIBIT AND EXECUTED BY BOTH CUSTOMER AND FOTHION, INC. FOTHION, INC MAKES NO GUARANTEE THAT ITS SERVICES, ANALYSIS, MATERIAL, AND SOFTWARE DELIVERED HEREUNDER WILL BE ERROR-FREE, NOR DOES FOTHION, INC. MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED BY THE CUSTOMER FROM THE USE OF FOTHION, INC.’S SERVICES, ANALYSIS, MATERIAL, AND SOFTWARE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, FOTHION, INC. MAKES NO OTHER WARRANTIES, WHETHER WRITTEN, ORAL, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL FOTHION, INC. BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE OR DATA OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, Ransomware Attacks and any other FORM OF CYBER ATTACKS, DESTRUCTION, OR UNAUTHORIZED ACCESS TO FOTHION, INC.’S RECORDS, PROGRAMS OR SERVICES, REGARDLESS OF WHETHER A CLAIM OR ACTION IS ASSERTED IN CONTRACT OR TORT, AND REGARDLESS OF WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO FOTHION, INC. IN ADVANCE BY CUSTOMER OR ANY THIRD PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY FOTHION, INC..
IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE. THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY OF FORESEEING POSSIBLE DAMAGES, ALL LIABILITY TO CUSTOMER, INCLUDING LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED UP TO FIVE THOUSAND DOLLARS ($5,000.00). The liability limit of $5000.00 (Five Thousand Dollars) will not apply if malicious or criminal intent is proven.
PROPERTY RIGHTS:
FOTHION owns all rights, title and interest in FOTHION’s trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist of. This agreement does not constitute a license to Customer to use FOTHION’s trade names or service marks. The use by Customer of the other property rights mentioned here is authorized only for the purpose of marketing and selling Plans.
CONFIDENTIALITY:
Customer and FOTHION each acknowledge that by reason of their relationship with FOTHION hereunder, they each may have access to certain information and materials relating to the other’s business, plans, customers, software technology, trade secrets, financial data, marketing strategies and other confidential information that is confidential and of substantial value to the other party, which value would be impaired if such information were disclosed to third parties. Each party agrees that it will not be used in any way for its own account nor for the account of any third party, nor disclose to any third-party, any such information revealed to it by the other party. Each party further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of the termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential materials shall be returned to the other party or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, the party not in breach shall be entitled to injunctive relief, which relief shall not be contested by the breaching party. Confidential Information shall not include information which is generally known or easily ascertainable by third parties of ordinary skill and competence in computer system design and programming, nor shall it include information already known to the receiving party or disclosed to the receiving party by a third party without violation of a duty of confidentiality to the disclosing party.
Restrictions on Use of Confidential Information. Both FOTHION, INC. and CUSTOMER agree that during the course of their relationship and at all times thereafter, FOTHION, INC. and CUSTOMER shall hold in the strictest confidence, and shall not use for either party’s personal benefit, or disclose, duplicate or communicate to or use for the direct or indirect benefit of any other person, firm, corporation or entity, any Confidential Information without the prior written consent of the other party, unless (i) required to do so in order to fulfill their respective obligations under this Agreement, or (ii) pursuant to a court order or by operation of law.
Non-Solicitation. While FOTHION, INC. is performing Services under this Agreement and for a period of three (3) years following the expiration or the termination of this Agreement, whichever is later, neither party shall directly or indirectly, except with mutual written approval, solicit or offer employment or engage the services of either party’s personnel or staff, including its independent contractors, whether as an employee, independent contractor, or in any other capacity.
RELATIONSHIP OF THE PARTIES:
The relationship between FOTHION and Customer is that of vendor and vendee. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This agreement is a commercial agreement between businesses, not a consumer agreement. Customer has no authority, apparent or otherwise, to contract for or on behalf of FOTHION, or in any other way legally bind FOTHION in any fashion, nor shall Customer be authorized to make any representations about FOTHION or its services other than to set forth FOTHION’s responsibilities as outlined in this agreement.
DISPUTES:
The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any action or proceeding regarding the interpretation or enforcement of this agreement shall take place in Los Angeles, California. Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels
TERMS AND CONDITION:
- A 5% increase for Inflation will be applied to contract automatically on an annual basis.
- 5% increase does not apply during initial term of contract for contract with 2 years term or more.
- Your invoice is due upon receipt and must be paid by 20th of the month before the service month.
- All payments will be first applied to the oldest open invoice.
TERMINATION, Term:
The contract shall automatically be renewed on an annual basis unless terminated by either Customer or FOTHION with a sixty (60) Days written notice prior to the renewal date of the agreement.
This agreement shall be terminated by either party as follows:
- Should the customer terminate this contract before renewing, the remaining balance of contract term will be due upon cancellation notice to Fothion.
- By FOTHION, upon sixty (60) days prior written notice, if Customer breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days.
- By FOTHION, upon sixty (60) days written notice, FOTHION provides Customer with written notice of the specific reasons for its belief in this regard, and Customer has not cured by the end of the 60 days.
- By FOTHION, immediately upon giving written notice to Customer, if:
- Any bank draft or check delivered by Customer to FOTHION in payment of products is returned unpaid and Customer fails to remedy such nonpayment within five business days.
- There are instituted bankruptcy or insolvency proceedings against Customer, which are not vacated within sixty (60) days from the date of filing.
- Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or
- Customer makes an assignment of all or part of its assets for the benefit of creditors.
- By FOTHION immediately, if Customer attempts to assign all or any part of this Agreement without FOTHION’s prior written approval.
- By FOTHION immediately, if Customer fails to cause FOTHION to be informed in writing immediately on the happening of any event specified in this section.
- By Customer, immediately and without prior written notice to be effective upon giving written notice to FOTHION, if;
- FOTHION breaches any material provision of this agreement.
- There are instituted bankruptcy or insolvency proceedings against FOTHION, which are vacated within sixty (60) days from the date of filing.
- FOTHION institutes voluntary bankruptcy/insolvency proceedings, or otherwise admits insolvency.
- FOTHION makes an assignment of all or part of its assets for the benefit of creditors; or
- FOTHION fails to cause Customer to be informed in writing immediately on the happening of any event specified in this section.
- The provisions of paragraph survive any termination of this agreement.
NONASSIGNABILITY
Customer’s rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of FOTHION, which consent shall not be unreasonably refused. FOTHION shall not assign its rights and obligations under this agreement to a third party without written consent of Customer.
PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. FOTHION and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by FOTHION in California. It is to be governed by and construed under the laws of the State of California and the United States of America. The federal and state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of this agreement.
COMPLIANCE WITH LAWS Fothion shall comply with all laws applicable to Fothion as Provider in its role as a Managed IT Provider. For the avoidance of doubt, unless otherwise provided in an Order, Fothion is not responsible for complying with the laws applicable to Customer or Customer’s industry. Customer shall comply with all laws applicable to Customer or in Customer’s industry. Although it is under no obligation to do so, from time to time, Fothion may make recommendations regarding legal requirements and regulatory compliance protocols related to Customer’s network and practices. If Customer fails to adopt or implement the recommended legal requirements or regulatory compliance protocols, Customer is responsible for any and all damages related to legal and regulatory compliance. Even if Customer does take Fothion’s advice regarding legal requirements and regulatory compliance protocols, Fothion does not take responsibility for any legal requirements and regulatory compliance protocols or audits.
INSURANCE
Customer Obligations: Customer shall maintain a minimum of One Million Dollars (US $1,000,000) in insurance coverage through its respective carriers. Such insurance must include, at a minimum, commercial general liability, workers’ compensation coverage, and first-party cyber liability.
Provider Obligations:
Fothion agrees to maintain during the Term, professional liability insurance with aggregate limits of at least One Million Dollars (US $1,000,000). Customer’s insurance shall be primary over Fothion’s insurance. Customer agrees to waive and to require its insurers to waive any rights of subrogation or recovery they may have against Fothion, its agents, officers, directors, and employees.
Upon request by Customer, Fothion may assist Customer with: 1) the preparation of applications for insurance; or 2) provide technical assistance to Customer in connection with providing information for the underwriting of insurance. Customer acknowledges and agrees that Customer is solely responsible for reviewing the information for accuracy and Customer will be solely responsible for adverse actions taken by insurance carriers in connection with underwriting or claims administration.
DATA PRIVACY & PROTECTION
Customer Data
Fothion agrees that any electronic data or personal information submitted by Customer to Fothion as a part of the Service (“Customer Data”) remains the property of Customer and/or its end-user or other third party. Fothion agrees that it will comply with all applicable United States data privacy and data security laws that the Services are subject to and as stated herein.
Compliance with Privacy and Data Security
Customer agrees not to provide any consumer or other third-party data subject to privacy regulation under international, federal, state, or local laws (“Regulated Data”) to Fothion including but not limited to HIPAA, GLBA, GDPR, CCPA, etc. the California Consumer Privacy Act (“CCPA”) without first entering into an appropriate Order with Fothion that specifically references the Regulated Data and the law to which the Customer Data is subject.
Data Processing Agreement
For Customers who require the processing of Regulated Data, Customer must enter into an applicable Order with Fothion, together with a data processing agreement (the “Data Processing Agreement” or “DPA”). Each data privacy or data protection regulation may contain its own separate addendum (or combined addendum) depending on Fothion or Customer’s regulated activities.
Marketing
Customer hereby grants Fothion the right to reference Customer’s name, industry, logo, and URLs in its marketing literature, website, and/or correspondence to potential new Customers, so as to identify Customer as a customer of Fothion for marketing purposes and for Fothion’s benefit. Such information is not considered Confidential Information subject to non-disclosure.
NOTICES: Except with respect to service of process as set forth in contract, all notices may be sent by e-mail, fax, or express mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
Fothion reserves the right to modify the terms of this Master Service Agreement at any time. Any changes will be communicated to the Client via email.