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- AGREE TO PERFORM AND PAY
TULIX agrees to perform services defined in the Attached Proposal, and CUSTOMER agrees to pay the fees for the services in the sums described in the Attached Proposal for the TERM of the Agreement.
- TERM OF AGREEMENT
The TERM of this Agreement shall be effective for one year from date of signing, unless terminated earlier as provided herein. This Agreement shall automatically renew itself for additional terms equal to the length of the original TERM, unless either party gives the other written notice of its desire not to renew at least thirty (30) days prior to the expiration of the initial or any subsequent terms. At the time of renewal, the Parties agree to renegotiate the fees for the additional terms to be paid by CUSTOMER to TULIX for the services provided hereunder.
- ENTIRE AGREEMENT
The Terms and Conditions contained in this Agreement supersede all prior oral or written understandings between the parties and constitute the entire agreement between them concerning the subject matter of this Agreement and shall not be contradicted, explained or supplemented by any course of dealing between TULIX or any of its affiliates and CUSTOMER or any of its affiliates. There are no understandings or representations, express or implied, not expressly set forth in this Agreement. This Agreement shall not be modified or amended except in writing signed by the parties.
- PROVIDED INFORMATION
All materials delivered to TULIX by CUSTOMER ("CUSTOMER's Material") shall remain the property of CUSTOMER, and TULIX shall not have the right to use the CUSTOMER's Material except in performing the Development Services for CUSTOMER. The CUSTOMER warrants that all information and any other material provided to TULIX is owned by the CUSTOMER. All Work Product except for the CUSTOMER's Material shall be the sole property of TULIX, and TULIX reserves all rights in the Work Product, subject to the above license.
- CORE MODULES
TULIX uses core modules of software code to build Programming Code and does not grant CUSTOMER resale or licensing rights to the Programming Code. All Work Product is subject to intellectual property rights reserved by TULIX and/or others as designated by TULIX, and may not be further licensed or transferred to others by CUSTOMER.
- VARIANCE
TULIX's price is subject to a variance of fifteen percent (15%) due to the interactive nature of creative, technical, and other development work for fixed-price, fixed-hour quote, or other estimated pricing. Costs for equipment may change due to market conditions and TULIX agrees to promptly provide CUSTOMER notice of any such price changes. Unless noted otherwise, fixed-price estimates are subject to change by TULIX if the requirements of the services to be performed change during the project based upon TULIX's understanding.
- RENEWAL OF HOSTING SERVICES
CUSTOMER will contact the TULIX representative concerning renewal. Services will continue to be provided at a rate of one hundred twenty-five percent (125%) of contracted price for each month past the TERM of the Agreement until the Agreement is cancelled or renewed for a subsequent term in writing. If CUSTOMER has made modifications to the Work Product itself or with another vendor TULIX may, at its own discretion, decline renewal.
- CANCELLATION
If TULIX is in material breach of this Agreement, CUSTOMER may cancel this Agreement at the time of breach by giving written notice to cancel services to TULIX. At that time TULIX, at its sole discretion and based on value of work delivered and provisions of costs already undertaken made in expectation of services delivery, will determine the cancellation fee to be paid by CUSTOMER. CUSTOMER agrees to pay upon receipt of invoice from TULIX these fees. After all invoices are paid TULIX will transfer any remaining Work Product to CUSTOMER within fifteen (15) business days. TULIX may cancel this Agreement anytime during the TERM of the Agreement by giving written notice to cancel services to CUSTOMER. TULIX at its sole discretion will remit an appropriate amount, if any, of pre-paid fees.
- DOMAIN NAME FEES
Domain name registration, maintenance, or any other fees associated with or imposed upon TULIX by InterNIC for Internet domain name registration are not included by the Attached Proposal as they are incurred directly with InterNIC. CUSTOMER agrees to pay these Registration Fees promptly upon receipt of an invoice from InterNIC for such sums. Currently these fees are up to $70 for registration and maintenance for two (2) years from the date of domain activation. Domains will be assessed a maintenance fee of $35 by Network Solutions on the anniversary of the activation date of said domain.
- UNAUTHORIZED ACCESS
CUSTOMER specifically agrees not to make any attempt to gain unauthorized access to any other systems or networks. CUSTOMER is responsible for the security of his Work Product. TULIX is not responsible for any unauthorized access to the Work Product including but not limited to hacker attacks, vandalism, corruption of information, theft of information, or any other manipulation or any resultant damages, real or immaterial, incurred thereof.
- DATA INTEGRITY AND ACCURACY
CUSTOMER understands that the information available through TULIX or interconnecting networks may not be accurate. CUSTOMER understands that inter-networking Systems, INC are not secure and may be subject to interception or loss. TULIX MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY CONCERNING THE DATA OR INFORMATION AVAILABLE THROUGH THE TULIX NETWORK.
- IP ADDRESS USE
Upon expiration, cancellation, or termination of the Agreement, CUSTOMER shall relinquish any IP addresses or address blocks assigned to CUSTOMER by TULIX.
- COMPLIANCE WITH THE LAW
CUSTOMER agrees to comply with all international, federal, state and local laws ("governing law"). In addition, CUSTOMER agrees to comply with governing law as it relates to content and the practice of content distribution thereof. TULIX reserves the right to remove objectionable content on CUSTOMER's Work Product or any account on TULIX's servers, routers and any other equipment at TULIX's sole discretion. CUSTOMER shall not use or permit CUSTOMER end users to use provided services in ways that violate laws, infringe the rights of others or interfere with users of TULIX's network or other networks. For example, CUSTOMER shall not propagate computer worms or viruses; use a false identity; attempt to gain unauthorized entry to any site or network; distribute child pornography, obscenity or defamatory material over the Internet; or infringe copyrights, trademarks or other intellectual property rights. CUSTOMER further agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the services provided.
- REPRESENTATIONS AND WARRANTIES
TULIX warrants that it is authorized to enter into this Agreement and grant the rights as set forth herein. CUSTOMER represents that it has the authority to enter into this Agreement and is not by law or agreement with others prohibited from entering into this Agreement. OTHERWISE, CUSTOMER AND TULIX DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AGAINST INFRINGEMENT AND OF FITNESS FOR A PARTICULAR PURPOSE.
- NONDISCLOSURE
CUSTOMER and TULIX acknowledge that the other party may disclose to it ("Recipient") certain Proprietary Material in the performance of this Agreement. Recipient agrees: (i) to hold the Proprietary Material in strict confidence, (ii) not to use the Proprietary Material other than for the performance of this Agreement, and (iii) to disclose the Proprietary Material only to full-time employees of Recipient requiring such material for performance of the Services in accordance with this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. "Trade Secrets" means information of Recipient that is a trade secret under applicable law. "Confidential Information" means confidential or proprietary information of value to CUSTOMER or TULIX other than Trade Secrets. "Proprietary Material" means Trade Secrets and Confidential Information. This obligation will continue during the TERM and for three (3) years thereafter for Confidential Information and for Trade Secrets as long as they are Trade Secrets under applicable law.
- TRADEMARKS
TULIX grants CUSTOMER permission to utilize, and CUSTOMER agrees to maintain and display, certain TULIX-designated trademarks and symbols in CUSTOMER's Work Product in the form placed by TULIX pursuant to the Services. CUSTOMER grants permission to allow TULIX to include it in customer lists and other marketing purposes.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL TULIX OR CUSTOMER (NOR THEIR SUPPLIERS OR CUSTOMERS) BE LIABLE TO THE OTHER PARTY OR ANYONE ELSE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM THE LOSS OF USE, DATA, OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM OR THE USE OF ANY SERVICE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TULIX's ENTIRE LIABILITY FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER, WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO DIRECT, PROVEN DAMAGES IN AN AMOUNT NOT TO EXCEED THE SUMS PAID BY CUSTOMER TO TULIX HEREUNDER, IN AGGREGATE FOR ALL SUCH CLAIMS.
- BILLING POLICIES
TULIX shall bill and CUSTOMER shall pay for the Services from CUSTOMER in accordance with TULIX's standard practices. The full amount due to TULIX shall be payable upon receipt of the TULIX invoice. TULIX reserves the right to review, modify, approve, and/or reject for any reason any or all CUSTOMER's proposals, contracts and orders for Services. CUSTOMER agrees to pay TULIX the fees for the Services provided to CUSTOMER during the TERM. CUSTOMER shall pay to TULIX any reasonable out-of-pocket expenses it incurs in connection with its performance of this Agreement. CUSTOMER agrees to pay interest on all past due sums at the rate of the lesser of one percent (1%) and one-half percent (1.5%) per month (12% and 18% per annum, respectively) or the maximum legal rate. All sums described herein and due to TULIX hereunder shall be paid in U.S. dollars. Taxes, surcharges, and/or shipping, and other applicable governmental charges are additional costs that will be charged to CUSTOMER in addition to charges stated in the Attached Proposal. CUSTOMER is responsible for payment of all usage based surcharges that are applied to its account.
- SEVERABILITY AND SAVINGS
If any paragraph, or clause thereof, of these Terms and Conditions shall be held to be invalid or unenforceable in any jurisdiction in which these terms and conditions apply, then the meaning of such paragraph or clause shall be construed so as to render it enforceable to the extent feasible; and if no feasible interpretation would save such paragraph or clause, it shall be severed from these terms and conditions and the remainder shall remain in full force and effect, unless leaving the remainder in full force and effect would make the Agreement unjust.
- NON-WAIVER
A waiver of a breach or default under this Agreement shall not be a waiver of any subsequent default. Failure of either party to enforce compliance with any TERM or Condition of this Agreement shall not constitute a waiver of such term or condition.
- COMMUNICATION
Any request or other communication shall be deemed sufficiently given to the addressee and any delivery hereunder deemed made when sent by certified mail addressed to CUSTOMER at its office specified in this Agreement or to TULIX at the appropriate address specified in this Agreement. Each party to this Agreement may change an address by relaying it through written notice to the other party. All notices under this Agreement shall be in writing and shall be given in person, by certified or registered mail or by overnight courier, addressed to CUSTOMER at the address set forth in this Agreement or to such other address as either party may designate by notice pursuant hereto.
- ASSIGNMENT
Except as otherwise provided within this Agreement, neither party may transfer or assign this Agreement without prior written consent of the other party. TULIX and CUSTOMER may only assign this Agreement to its parent, an affiliate, or any successor in interest or pursuant to a merger, sale, or reorganization. Neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by circumstances beyond its control, except for CUSTOMER's obligations to pay sums due hereunder.
- INDEPENDENT CONTRACTOR
The relationship between TULIX and CUSTOMER under this Agreement shall be and shall at all times remain one of independent contractors.
- SURVIVABILITY OF AGREEMENT
Sections 15, 16, 21, 22, 23, 24, 27, 30, and 33 of these Standard Terms and Conditions shall survive the termination, cancellation, or expiration of this Agreement.
- WAIVER
No course of dealing, course of performance, or failure of either party strictly to enforce any term, right, or condition of this Agreement shall be construed as a waiver of any term, right, or condition.
- GOVERNANCE
Georgia State Law, excluding its choice of law provisions, shall govern the construction, interpretation and performance of this Agreement.
- FORMATTING
All headings contained in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement or any clause.
- LIMITATION DUE TO INTERNATIONAL SECURITY
TULIX can only provide security services and encryption as allowed by the Federal government of the United States to foreign countries. Any limitation incurred by any governing bodies of the United States, treaties made on her behalf, or other regulatory agencies domestic or international shall not be construed as failure to perform.
- NON-HIRE
CUSTOMER and TULIX warrant that neither CUSTOMER will hire current or future employees from each other during and for twelve (12) months after the TERM of this Agreement unless both parties agree in writing.
- TRAVEL-RELATED EXPENSES
Unless travel related expenses are agreed to be included, they are separate and paid for by CUSTOMER at business-quality rates and facilities, including a $45 per diem per person allocated for meals and miscellaneous expenses. Air travel is at business or coach class, on non-stop flights wherever possible.
- THIRD-PARTY SOFTWARE
If CUSTOMER purchases optional functionality that involves the acquisition of third-party software through TULIX, CUSTOMER agrees to sign any required third-party license agreements prior to delivery of the third-party software. If TULIX installs third-party software for CUSTOMER and acceptance of license terms is effected electronically, CUSTOMER authorizes TULIX to accept third-party license terms on CUSTOMER's behalf. In the event TULIX makes any software available to CUSTOMER in connection with TULIX services, CUSTOMER acknowledges and agrees that title to such software remains with TULIX and TULIX's third-party providers, if any, that the content and design of such software are valuable trade secrets and that CUSTOMER may use such software only for purposes of TULIX services. CUSTOMER agrees not to:
(a) copy or duplicate such software;
(b) reverse engineer, decompile or disassemble such software;
(c) make derivative works from such software; or
(d) modify such software.
- INDEMNIFICATION
In connection with the this Agreement, if any lawsuit, claim, or proceeding is filed or if any fine or penalty is assessed against TULIX that allegedly arises out of CUSTOMER's act or omission, CUSTOMER shall indemnify and hold harmless TULIX against liability for damages, reasonable expenses, and legal fees incurred in the investigation and defense of any action, except to the extent or degree that TULIX was liable as a result of:
- Having caused or contributed to CUSTOMER's act or omission, or
- Having assumed any liability, incurred any expense, or made any payment in compromise or settlement of the action, without CUSTOMER's prior written consent.
TULIX shall give CUSTOMER, within twenty (20) business days, immediate written notice of any action and shall fully cooperate with CUSTOMER. If TULIX fails to do so, CUSTOMER's obligation to indemnify TULIX shall not apply. CUSTOMER shall have the right regarding such an action to assume or associate itself in the defense of the action.
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