This Services Agreement (this "Agreement") is between Punchmark, LLC ("Punchmark") and the customer ("Customer") receiving web design, development, hosting, maintenance and/or other agreed services ("Services") from Punchmark. Punchmark and Customer have agreed to a proposal, quotation, order, statement of work or other documentation ("Proposal") that defines the specific services, fees and related commercial terms as agreed to by the parties.
By using the Services, or by agreeing to a Proposal that references this Agreement, Customer agrees to the terms of this Agreement.
- Services Generally. Punchmark will use commercially reasonable efforts to perform the Services in accordance with the Proposal. Customer authorizes Punchmark to perform such actions that are reasonably necessary or desirable to provide the Services, including as applicable accessing accounts, directories, databases, and submitting web pages and information to web search engines and other directories.
- Estimated Dates. Punchmark may specify in the Proposal estimated dates for beginning and completing the Services. Any estimated dates are for planning purposes only and are not a guarantee; actual dates may vary if Customer fails to provide required content, assistance, and/or decisions, access to resources, or for other reasons. If an estimated schedule is not stated in the Proposal or other project implementation specification, then Punchmark will deliver the products and services within a reasonable time according to the amount of work necessary to complete the Services.
- Changes. If Customer wishes to make changes to the scope of Services set forth in a Proposal, Punchmark may prepare a separate quotation or change Proposal that defines the extra work and associated fees to be incurred. Punchmark shall not be required to perform additional Services without Customer's written acceptance of the quotation or change Proposal for additional work.
- Compliance. Customer agrees to comply with all applicable laws, rules and regulations when making use of the Services and the results of the Services provided to Customer by Punchmark ("Deliverables").
- Customer Delays. If Customer's failure to perform its responsibilities under this Agreement causes a delay in the delivery of the Services, then (i) Punchmark may set a new time frame for the applicable project schedule, including a new delivery date of the final Deliverable, as determined in Punchmark's discretion, and (ii) notwithstanding the delay, any monthly fees described in the Proposal shall commence and become due and shall continue to be due in accordance with the payment schedule set forth in the Proposal.
- Business Hours. Unless otherwise noted in the Proposal, the standard work hours for Punchmark personnel are Monday through Thursday 9:00 am to 6:00 pm eastern time, and Friday 9:00 am to 5:30 pm, excluding any holidays. Summer hours for Fridays are 9:00 am to 5:00 pm eastern time between Memorial Day and Labor Day.
2. Customer Requirements. In addition to the other Customer requirements in this Agreement and in the Proposal, Customer will:
- Cooperation. Cooperate with and reasonably assist Punchmark in the performance of the Services and interact with Punchmark in a professional and courteous manner, including by promptly providing Punchmark with content, access to resources, the assistance of informed personnel, and approvals from authorized personnel, all as required by Punchmark to carry out the Services hereunder;
- Customer Content. Remain solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data, information, and materials provided by Customer ("Customer Content"). Punchmark reserves the right to refuse to provide Services that involve Customer Content that is illegal, discriminatory, infringing, or otherwise inappropriate, in Punchmark's sole discretion. Customer represents and warrants that it has obtained, and is otherwise responsible for securing, all necessary licenses, permits, and permissions, as applicable, for any Customer Content and other intellectual property that is supplied to or gathered at Customer's request by Punchmark. Punchmark has no obligation to attempt to validate Customer's authority to use or provide any Customer Content. Customer shall only use or provide Customer Content for which Customer has the legal right to do so and Customer shall inform Punchmark in writing of any changes required to conform to these rights. Such changes may be subject to additional charges, as determined by Punchmark in its discretion. If Punchmark is contacted by a third party requesting the removal of any Customer Content from Customer's Deliverables, Punchmark will promptly notify Customer. Customer shall have five (5) business days to resolve the dispute with such third party and cause such third party to withdraw or modify its request to Punchmark. Without written resolution from the third party, Punchmark will remove the items(s) in dispute from Customer's Deliverables;
- Product Content. Remain solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all product data, information, and materials provided by third-party vendors and sources ("Product Content"), even if Punchmark helped facilitate the delivery of such Product Content. If Punchmark helped facilitate the delivery of such Product Content, Customer will promptly notify Punchmark of any inaccuracies in the Product Content so that Punchmark can communicate with the vendor or third party to modify or correct such Product Content; and
- Orders. Remain solely responsible for ensuring that consumer website orders are received and fulfilled. Customer agrees to regularly login and access its website to ensure that orders are fulfilled in a timely manner. Punchmark is not responsible or liable for any failure of Customer to receive notice of orders through Customer's website.
3. Fees and Payment
- Fees. Customer agrees to pay Punchmark the fees and other amounts set forth in the Proposal. Invoices for any recurring monthly Services fee will be delivered in advance of the Services. Punchmark may require that invoices for software or other third-party purchases be paid in advance of Punchmark's ordering of these items. All fees and rates are subject to change upon renewal of a Proposal, upon notice to Customer.
- Electronic Funds Authorization. Customer agrees that Punchmark in its discretion may require payment of some or all fees by use of credit cards, ACH or other electronic funds transfer mechanism ("Electronic Payment Information"). Customer also agrees that Punchmark may require Electronic Payment Information and may use such Electronic Payment Information to complete payment at the time payment is due or if Customer is late in payment. If Electronic Payment Information is required by Punchmark, Customer agrees to maintain current Electronic Payment Information on file with Punchmark or Punchmark's payment processor.
- Rates. Unless otherwise agreed in a Proposal, Punchmark's standard rates will apply to Services, with time billed in ¼ hour increments. Punchmark may, but is not required to, provide any requested additional Services. Additional charges will apply for Services provided after Punchmark's regular business hours at Customer's request. Punchmark will use reasonable efforts to notify Customer in advance of performing any additional Services.
- Terms. Unless otherwise agreed in a Proposal, all invoices delivered by Punchmark are due within fifteen (15) days after the invoice date. All payments under this Agreement shall be made in United States dollars and are non-refundable. Customer's agreement to any Proposal constitutes a valid purchase Proposal for the Services associated with that Proposal including any additional Services performed related to but outside the scope of that Proposal. Invoice terms are subject to Customer credit approval.
- Late and Rejected Payments. Any payment that is rejected by the bank or credit card company shall result in a $35 administration charge to Customer payable to Punchmark. This administration charge will be invoiced to Customer and will be added to the total outstanding balance owed by Customer. Any payments for any amounts owing to Punchmark that are not received within thirty (30) days following invoice due date shall be subject to (i) an administration fee of $35 for each reminder letter or email that is sent, (ii) added interest at the lesser of 18% per annum (compounded and charged monthly) on the amount of the late payment(s) or the maximum rate that may be charged under applicable law, and (iii) the costs and expenses of any administration, and outside agency or other third-party that is used to collect the payments owed.
- Taxes. Customer agrees to pay all federal, state, local and other taxes based on this Agreement, the Services or its use, excluding taxes based on Punchmark's net income. If Customer claims tax-exempt status for any purpose in connection with this Agreement, Customer represents and warrants that it is a tax-exempt entity and will provide Punchmark upon request with a correct copy of Customer's tax-exempt certificate(s).
- Expenses. Customer shall reimburse Punchmark for all reasonable out-of-pocket expenses incurred by Punchmark in connection with this Agreement, including but not limited to travel and shipping expenses.
4. Term; Termination.
- Term. This Agreement is effective beginning on the Effective Date and will continue for the term specified in the Proposal, unless earlier terminated as set forth herein. Except for Proposals applying to one-time Services only, and unless otherwise specified in the Proposal, each Proposal automatically renews for subsequent monthly terms following the end of the initial term, unless either party gives at least 30 days written notice of termination prior to the end of the current term. "Term" as used herein means the Initial Term and all Renewal Terms.
- Termination for Breach; Suspension. Either party may terminate this Agreement or any Proposal if the other party materially breaches this Agreement or such Proposal and such breach is not cured within thirty (30) days after written notice. Punchmark may suspend some or all of the Services upon notice to Customer if Customer materially breaches this Agreement, including but not limited to by not paying any fees or costs when due.
- Termination for Insolvency. Either party may terminate this Agreement if: (i) the other party has a receiver or administrative receiver appointed over its assets; (ii) the other party's governing body passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation, reconstruction, or merger), or a court of competent jurisdiction enters a Proposal to that effect; (iii) the other party makes a general assignment for the benefit of creditors; (iv) the other party ceases or threatens to cease to carry on business; (v) the other party is generally not paying its debts as they become due; or (vi) the other party is the subject of any petition under any bankruptcy or other law for the protection of debtors, except an involuntary petition that is dismissed within 60 days after filing.
- Effect of Termination. Upon termination, Customer will pay Punchmark all amounts due based on Services provided through the date of termination. In addition, if Customer terminates this Agreement without cause, or if Punchmark terminates this Agreement due to the material breach of Customer, then Customer will pay Punchmark, in one lump sum fee, an amount equal to the fees remaining, if any, to be paid during the initial term.
- Survival. Sections 3, 4(d), 5, 6, 7, 8, 9, 10, and 11 of this Agreement shall survive termination or expiration of this Agreement. Termination of this Agreement will not affect any accrued rights or liabilities of either party.
5. Intellectual Property
- Ownership. Customer agrees that Punchmark and its third-party licensors and suppliers own all right, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual property rights, in the Services and the Deliverables, including without limitation, texts, graphics, code, software, photos, designs, trademarks, and artwork, gathered and implemented by Punchmark, but excluding any Customer-specific images and content.
- License. Customer shall have a nontransferable (except to Customer's successor), nonexclusive limited license to use the Deliverables for the Term solely in support of its internal business. Customer shall not reproduce or reuse the Deliverables in any manner whatsoever without the express written consent of Punchmark. Punchmark retains the right to display Deliverables as examples of its work in its portfolios and other marketing materials.
- Customer Content. Customer shall defend, hold harmless and indemnify Punchmark from and against any claim or suit brought against Punchmark which alleges that any Customer Content or that Punchmark's access to Customer's software or hardware required for the Services infringes or misappropriates any third-party intellectual property, privacy, or other right. Customer shall be solely responsible for any royalty or licensing fees or costs resulting from the use of Customer Content that require such payments.
- Definition. "Confidential Information" means any confidential business or technical information or data that is disclosed by one party to the other party pursuant to this Agreement. Confidential Information does not include information that: (i) is or becomes publicly known or available without breach of this Agreement; (ii) is received by a receiving party from a third party without breach of any obligation of confidentiality; (iii) was previously known by the receiving party as shown by its written records; or (iv) is independently developed by the receiving party. The terms of the Proposal (and information relating to the negotiation of the Proposal) shall be the Confidential Information of Punchmark.
- Confidentiality Obligations. A receiving party agrees: (a) to hold the disclosing party's Confidential Information in confidence; (b) not to, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information, except to its employees and contractors who have a need to know such information for the purpose of this Agreement; and (c) to protect the disclosing party's Confidential Information with the same degree of care that it uses to protect its own Confidential Information, no less than a reasonable standard of care. A receiving party may disclose Confidential Information of the disclosing party as required by law or court Proposal; in such event, unless prohibited by law, such party shall inform the other party as soon as practicable, prior to any such required disclosure.
- Remedies. Each party acknowledges and agrees that any violation of this Section may cause such party irreparable injury for which such party would have no adequate remedy at law, and that such party shall be entitled to seek preliminary and other injunctive relief against the other party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that such party may have at law or in equity.
- Termination. Upon the termination of this Agreement, the receiving party will return to the disclosing party or destroy all the Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party; provided that, with the receiving party may retain Confidential Information in standard information systems backup programs.
- Limited Warranty. Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder. Punchmark warrants that the Services will be provided in a professional and workmanlike manner, using personnel that are qualified. If Customer provides notice of a breach of the foregoing warranty within thirty (30) days after the delivery of the Services, Punchmark will, as Customer's sole remedy, use reasonable commercial efforts to correct the breach at no additional charge.
- Disclaimer. Punchmark does not warrant that the Services will be provided uninterruptedly or error-free. Except to the extent set forth in a Proposal, Customer agrees that it has the sole responsibility for securing and backing up its data. Punchmark is in no way liable for issues, defects or inaccuracies in any third-party content, software, systems and technology, or for correcting errors introduced into data or software due to failure of third-party systems, or for any cost of reconstructing software or lost data. PUNCHMARK IS NOT RESPONSIBLE FOR CUSTOMER'S FAILURE TO MAINTAIN ADEQUATE BACKUPS, NOR FOR THE COST OF RECONSTRUCTING DATA STORED ON BACKUP SYSTEMS. Except as expressly set forth in this Agreement, Punchmark and its suppliers make no warranties, express or implied, including but not limited to any implied warranties of merchantability; fitness for a particular purpose; or arising as a result of Customer usage in the trade or by course of dealing.
8. Limitation of Liability.
- General. The parties agree that it is impossible to guarantee: (i) the trouble-free performance and security of web sites, hardware, software, networks, environments, and systems, regardless of whether procured, provided, installed, managed, or supported by Punchmark, or in any way associated with the Services. Accordingly, Customer and Punchmark agree to the limitations of liability and damages in this Section.
- Limitations. Customer agrees that the maximum aggregate liability of Punchmark or any of its suppliers relating to this Agreement and the Services shall be limited to the amount of fees actually received by Punchmark from Customer under the Proposal during the prior six (6) months. In no event shall either party or any of its suppliers be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property or death; or any lost sales, profits or data, even if a party is told that any of such damages may occur. In no event is Punchmark liable for any systems related to medical devices, other life-saving devices, real time controls for critical processes, or other systems the failure of which might cause injury or death, including any interface to any such systems.
- Security. Unless specifically agreed in a Proposal, Punchmark does not provide any warranties or guarantees concerning the security of any Deliverable, network or system. Punchmark is not liable for security breaches or for security flaws related to third-party products and services used in connection with the Deliverables. Punchmark shall not be held accountable for patching any software that has been installed to the Deliverables without Punchmark knowledge.
9. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that such consent shall not be necessary for an assignment made to a party's successor in connection with the sale of all or substantially all of such party's business or portion of such party's business to which this Agreement relates, so long as such successor agrees in writing to the terms of this Agreement. Nothing herein shall limit Punchmark's right to assign its right to receive and collect payments hereunder.
10. Informal Dispute Resolution. The parties shall attempt in good faith to resolve any controversy, claim or dispute of whatever nature arising out of or relating to this Agreement ("Dispute") promptly by negotiation between executives or managers who have authority to settle the Dispute and who are at a higher level of management within each of the parties' organizations than the parties' appointed project or account managers. Each party shall provide the other with all information and documentation relied upon by the party to substantiate its position with respect to the Dispute.
11. Other Provisions
- Publicity. Punchmark may include Customer's name and logo in a list of Punchmark Customers and as a user of the Services.
- Independent Contractors. The parties are independent contractors, and nothing in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between Punchmark and Customer. Customer agrees that Punchmark may use subcontractors to perform Services.
- Non-Solicitation. Customer shall not, directly or indirectly, solicit, hire or retain, nor cause to be solicited, hired or retained as an employee or independent contractor, any Punchmark employee or former employee employed by Punchmark in a technical or sales position at any time during the term of this Agreement and for a period of one (1) year following termination of this Agreement. Customer agrees that if Customer wishes to hire any employee of Punchmark employed by Punchmark in a technical or sales position while bound by this section, Customer will pay to Punchmark a fee equal to the greater of: (1) such employee's most recent annual salary and bonus and (2) the salary and bonus offered to such employee by Customer. Customer agrees that this fee is fair and not excessive.
- Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and delivered to the addresses listed on the Contact section of the Cover Page of this Agreement either: (i) by personal delivery; (ii) by certified mail; or (iii) by nationally recognized overnight courier, and shall be effective upon receipt.
- Integration. This Agreement (including the Cover Page and the Proposal) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, discussions and agreements between the parties concerning its subject matter. Customer acknowledges and agrees that, in entering into this Agreement, Customer has not relied on any information or promises not in this Agreement. If there is a conflict between the terms of this Agreement and the terms of the Proposal, the terms of the Proposal shall control. This Agreement may not be modified or waived except in a written document, signed by both parties. Any additional or conflicting terms on any purchase Proposal related to this Agreement shall be void and without effect.
- Applicable Law and Jurisdiction. This Agreement shall be governed by the laws of the State of North Carolina, without regard to its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods does not apply this Agreement. The parties submit to the jurisdiction of the state and federal courts sitting in Mecklenburg County, North Carolina, and agree that such courts shall have sole and exclusive jurisdiction over all disputes and causes of action involving such parties that arise out of or in connection with this Agreement. In any action brought by a party related to this Agreement, in addition to any other rights and remedies it may have, the prevailing party shall be entitled to collect from the other party its reasonable litigation costs and attorney's fees and expenses.
- Force Majeure. Except for Customer's payment obligations, each party shall be excused from performance and shall not be liable for any delay or failure caused by events outside of its reasonable control, including without limitation acts of war, terrorism, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, failure of the Internet, act of any government affecting the terms hereof, hurricane, earthquake, flood or other act of God.
- Third-party Beneficiaries. There are no intended third-party beneficiaries of this Agreement, and nothing in this Agreement may be relied upon by, or shall benefit, any party other than Punchmark and Customer.
- Severability. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability shall not affect the other provisions of the Agreement and all provisions not affected shall remain in full force and effect.
- Headings and Counterparts. Headings to clauses are for ease of reference only and will not affect the interpretation of this Agreement. This Agreement may be executed in any number of counterparts and by the parties upon different counterparts, each of which shall be deemed to be an original, but which together shall constitute one and the same agreement.
- Electronic Signatures. The parties agree that this Agreement and all Proposals may be submitted and signed electronically by digital signatures or other electronic manifestation of acceptance. Such signatures will be fully binding on the parties, in the same manner as if physically signed and submitted by a party. Each party waives any objection that its digital signatures and acceptances are not valid.