IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR "COMPANY" OR "CUSTOMER" SHALL REFER TO SUCH ENTITY.
APPROVED VENDOR. Upon execution of this Agreement and compliance with its terms, Customer agrees that ParksideTech shall be added to Customer's list of approved vendors, when applicable.
SCOPE OF WORK. If at any time Customer either verbally or through one or more written work orders, incidents, tickets or other instruments, requests ParksideTech to supply or perform services outside of the work detailed in the Scope of Work, and ParksideTech agrees to perform those services, each such request regardless of form shall be deemed a 'Custom Work Order' governed by and subject to these Terms and Conditions. Agreements or stipulations in any Custom Work Order that are contrary to any of these Terms of Service shall be void, unless ParksideTech and Customer have expressly agreed in writing that such stipulation shall supersede these Terms of Service.
Labor, Equipment, Materials, Supplies and Services
Upon receipt of a mutually agreeable Scope of Work, ParksideTech shall begin furnishing the services according to the specifications and requirements of this Terms of Service and the Scope of Work.
All services rendered by ParksideTech hereunder shall be performed in accordance with industry standards as applicable to the region or area where the work is to be performed. All materials and equipment expressly furnished by ParksideTech in the performance of services hereunder shall be free from material defects. ParksideTech shall not be liable for claims arising from or relating to latent or unknown defects.
Any materials and equipment furnished, acquired, paid for or otherwise provided by Customer shall be free from material defects. Any of the materials, equipment, or services found to be materially defective by ParksideTech shall be removed, replaced or corrected by ParksideTech with the express consent of the Customer.
Upon receipt of an invoice from ParksideTech, Customer shall pay ParksideTech for those services, equipment, and materials furnished by ParksideTech at the rates specified in the approved Scope of Work. ParksideTech terms are pay on invoice, NET 10. Customer shall notify ParksideTech in writing of a bona fide dispute asserted in good faith as to one or more of the invoice items. If ParksideTech has not received payment of the invoiced amount within 30 days from the date of the invoice, ParksideTech shall be entitled to claim and pursue all available legal and equitable remedies against Customer to recover the invoiced amounts (except amounts in dispute), and shall be entitled to recover from Customer all invoiced amounts not in dispute, plus ParksideTech's collection and litigation costs (including attorney fees), plus interest on all amounts owed at the highest rate allowed by law. ParksideTech has the right to modify pricing, at any time, with sixty (60) days advanced written notice.
In some cases -- generally when website design and development, or custom development work is part of a Scope of Work, a down payment will be required prior to work beginning. In such cases, the down payment amount will be clearly listed on the Scope of Work that is presented to the Customer.
Customer understands and agrees to the following: All or a portion of any down payment will be used for discovery, research and review of any and all components necessary for the completion of any custom development work. This includes, but is not limited to, review of requirements, documentation of Customer's systems and/or integrations, API review, communications with third parties and more. If ParksideTech, at their own discretion, is unable to complete the work as outlined in the Scope of Work, for any reason, any down payment received is non-refundable, unless otherwise agreed upon by the Customer and ParksideTech.
Change in Specification
The Customer may request that changes be made to any work as detailed in a provided Scope of Work. If the Customer requests such a change, ParksideTech will use its best efforts to implement the requested change at no additional expense to the Customer and without delaying the delivery of any services. In the event that the proposed change(s) will, in the sole discretion of ParksideTech, require a delay in the delivery of any service or would result in additional expense to the Customer, then ParksideTech shall confer with the Customer and the Customer shall, in its descretion, elect either to withdraw the proposed change(s) or require ParksideTech to complete the work with the proposed change(s) and accept and approve the delay and/or additional expense.
Support Response Times
In some cases, whether it's for Managed IT work, website design and development, custom IT work or more, support requests will be made to ParksideTech. In such cases, the initial response times for such requests are as follows:
- Business Hours: 1 hour maximum initial response time
- Outside Business Hours: 1 hour maximum initial response time
- Holidays: 1 hour maximum initial response time
- Emergencies: 30 minute maximum initial response time
ParksideTech shall be deemed an independent contractor with respect to any and all work performed under these Terms of Service and any Scope of Work. It is the express understanding and intention of the parties that no relationship of master and servant or principal and agent shall exist between Customer and the employees, agents, or representatives of ParksideTech or between the ParksideTech and the employees, agents, or representatives of Customer.
Ingress and Egress
Customer shall secure for ParksideTech rights of ingress and egress to the building, office, suite or tract of land on which the work to be performed is located. Customer shall advise ParksideTech of any limitations or restrictions to ingress and egress, and ParksideTech, its employees, agents, or sub-contractors shall abide by such limitations and restrictions. Should ParksideTech be denied access to any location for any reason not within the reasonable control of ParksideTech, Customer shall compensate ParksideTech for time lost by such denial.
Compliance With Laws
Customer and ParksideTech each agree to comply with all laws, rules, and regulations applicable to these Terms of Service or the performance of work hereunder as detailed in any Scope of Work. If either party is required to pay any fine or penalty resulting from the other party's violation of such laws, rules or regulations, the party who committed the direct violation shall immediately reimburse the other for any such payment.
Except for the duty to make payments hereunder when due, and the indemnification provisions under these Terms of Service, neither Customer nor ParksideTech shall be responsible to the other for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in these Terms of Service, 'Force Majeure Event' shall mean: Any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes (except financial) beyond the control of either party. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under these Terms of Service. Neither Customer nor ParksideTech shall be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.
Regarding Managed IT Services or other non-Online Presence work, ParksideTech retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of ParksideTech's work required under these Terms of Service or any associated Scope of Work. Customer acquires no right or interest in any such intellectual property, by virtue of these Terms of Service or the work performed as dictated by any associated Scope of Work or any additional Custom Work Order.
Where website design and custom development work is performed, the Customer shall be the owner of all right, title and interest in any intellectual property in the website and the services provided. ParksideTech acknowledges and agrees that the website and other material will contain valuable proprietary rights and disclaims all rights in such rights. Custom development work shall follow the same confidentiality guidelines where appropriate.
Intellectual Property Warranty
ParksideTech warrants and represents that it will not knowingly violate the intellectual property rights of any third party in its performance of duties outlined by any Scope of Work. The Customer warrants and represents that any content provided to ParksideTech, including any text, images, image files, audio or video files or any other content, shall not violate the intellectual property rights of any third party and the Customer shall indemnify ParksideTech against any claim that results from the providing of such allegedly infringing content.
Custom Development Software License
Unless otherwise agreed upon, ParksideTech grants Customer a non-exclusive license to use any custom-developed software. ParksideTech, together with any third parties whose software code is incorporated into any custom-developed software, retains all right, title and interest to the custom-developed software including, but not limited to, copyrights, trademarks, proprietary methods and trade secrets incorporated into the custom development.
At all times, ParksideTech shall, at its own expense, maintain with an insurance company or companies authorized to do business in the state where the work is to be performed, or through a funded or state approved self-insurance program, insurance coverage of the kind and in a minimum amount commesurate with industry standards. ParksideTech agrees to have its insurance carrier furnish Customer a certificate or certificates evidencing insurance coverage, upon the request of the Customer, in accordance with the requirements of this Agreement.
Taxes and Claims
ParksideTech agrees to pay all taxes, licenses, and fees levied or assessed on ParksideTech incident to the performance of the Scope of Work by any governmental agency and unemployment compensation insurance, old age benefits, social security, or any other taxes upon the wages of ParksideTech, its agents, employees, and representatives.
Customer agrees to pay all taxes, licenses, and fees levied or assessed on Customer incident to the performance of the Scope of Work by any governmental agency and unemployment compensation insurance, old age benefits, social security, or any other taxes upon the wages of Customer, its agents, employees, and representatives.
ParksideTech agrees to pay all claims for labor, materials, services and supplies incurred by ParksideTech and agrees to allow no lien or charge to be fixed upon any property of Customer. ParksideTech agrees to indemnify, protect, defend, and hold Customer harmless from and against all such claims, charges and liens.
ParksideTech agrees to protect, defend, indemnify and hold harmless Customer, its officers, directors, employees or their invitees, and any working interest owner for whom Customer is obligated to perform services, from and against all claims, demands, and causes of action of every kind and character without limit arising out of ParksideTech's or its sub-contractors' performance or non-performance of these Terms of Service and any associated Scope of Work, except for such as may be caused by the negligence of Customer, its agents or employees. ParksideTech's indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by Customer. If it is judicially determined that the monetary limits of the insurance required hereunder or of the indemnities voluntarily assumed in this Paragraph (which ParksideTech and Customer hereby agree will be supported either by available liability insurance under which the insurer has no right of subrogation against the indemnitees, or voluntarily self-insured, in part or whole) exceed the maximum limits permitted under applicable law, it is agreed that said insurance requirements or indemnities shall automatically be amended to conform to the maximum monetary limits permitted under such law.
Customer agrees to protect, defend, indemnify and hold harmless ParksideTech, its officers, directors, employees or their invitees, and any working interest owner for whom ParksideTech is obligated to perform services, from and against all claims, demands, and causes of action of every kind and character without limit arising out of Customer's or its sub-contractors' performance or non-performance of these Terms of Service and any associated Scope of Work, except for such as may be caused by the negligence of ParksideTech, its agents or employees. Customer's indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by ParksideTech pursuant to Section 10 above. If it is judicially determined that the monetary limits of insurance required hereunder or of the indemnities voluntarily assumed under this Section (which ParksideTech and Customer hereby agree will be supported either by available liability insurance, under which the insurer has no right of subrogation against the indemnitees, or voluntarily self-insured, in part or whole) exceed the maximum limits permitted under applicable law, it is agreed that said insurance requirements or indemnities shall automatically be amended to conform to the maximum monetary limits permitted under such law.
Customer and ParksideTech each waive any right to special, indirect and consequential damages against the other party hereto.
Termination of Work
Customer may, upon sixty (60) days advance written notice, in its sole discretion, terminate work covered by any work order issued hereunder. In such event, ParksideTech shall be paid at the applicable rates stipulated in ParksideTech's Rate Schedule or as the parties otherwise agree, for services rendered up to the date of such termination.
Should either party cancel, and work then being performed pursuant to any associated Scope of Work or Custom Work Order extends past such sixty (60) day period, then the cancellation shall not be effective until that work is completed or other arrangements are made between Customer and ParksideTech.
Hosting Acceptable Use
You hereby agree to acknowldge and abide by these Acceptable User policies. ParksideTech, as a hosting provider, reserves the right to determine, at Our sole discretion, whether You have violated any of these terms and take whatever action We deem appropriate.
As a user of the service, You agree as follows:
- Transmission, storage or presentation of any information, data or material in violation of any applicable law or regulation is prohibited.
- You will use good business judgement in your conduct.
- You will not send unsolicited email (spam).
- You will not create and/or send any malware, viruses or other potentially damaging files that may cause a disruption to the service or any disruption to the viable working of others.
- You will not act in any way or manner that might subject ParksideTech to unfavorable regulatory action, subject Us to any liablility for any reason or adversely affect Our public image, reputation, standing or otherwise, as determined by Us at Our sole discretion.
We do not review, edit, censor or take responsibility for any information You or Your end users create, post, publish or otherwise make available on Your website. As a result, We cannot, and do not, accept any responsibility from You or Your end users or any third parties resulting from inaccurate, unsuitable, offensive or illegal content or transactions. We specifically reserve the right to refuse to provide the Service to You or anyone engaged in the dissemination of material that may cause Us to be subject to attacks on Our network, or that while technically legal, run counter to Our corporate principles. This type of content may include, but is not limited to, racist, pornographic, hateful material or those which create customer service or abuse issues for Us.
The parties shall hold these Terms of Service and any Scope of Work issued hereunder confidential and shall only disclose the same as required by law. Information obtained by ParksideTech in the conduct of any work performed shall be considered confidential and shall not be divulged by ParksideTech or its employees, agents or sub-contractors, to any person, firm, or corporation other than Customer's designated representatives. Information obtained by Customer in the conduct of any work performed shall be considered confidential and shall not be divulged by Customer or its employees, agents or sub-contractors, to any person, firm, or corporation other than ParksideTech's designated representatives.
General and Specific Disclaimers
THE PRODUCTS AND SERVICES PROVIDED BY PARKSIDETECH ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. We DO NOT WARRANT (AND SPECIFICALLY DISCLAIM) THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE PRODUCTS AND SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DEFECT, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR THAT THE PRODUCTS AND SERVICES GENERALLY WILL BE SECURE. WE DO NOT WARRANT THAT THE PRODUCTS AND SERVICES: (i) WILL RUN PROPERLY ON, OR BE COMPATIBLE WITH, ALL HARDWARE OR INFORMATION TECHNOLOGY ENVIRONMENTS; OR (ii) WILL MEET YOUR NEEDS OR REQUIREMENTS.
(a) YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION AND USE OF AND RESULTS OBTAINED FROM THE PRODUCTS AND SERVICES.
(b) YOUR USE OF THE PRODUCTS AND SERVICES ARE AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR ENVIRONMENT, ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES, AND THE LOSS OR DAMAGE OF YOUR SPECIFIC CONTENT AND/OR DATA.
(c) REGARDING OUR BACKUP SERVICES, YOUR CONTENT AND/OR DATA MAY NOT BE AVAILABLE OR RESTORABLE IF:
(i) THE COPYING, SYNCING, TRANSFERRING, OR UPLOADING (COLLECTIVELY, “BACKUP”) OF YOUR CONTENT AND/OR DATA HAS NOT COMPLETED;
(ii) FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES (COLLECTIVELY, "DEVICE" OR "DEVICES") THAT ARE NOT SELECTED FOR AUTOMATIC BACKUP OR ARE NOT PART OF THE AUTOMATIC BACKUP PROCESS, YOU DO NOT INFORM US IN WRITING OR YOU FAIL TO MENTION CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP;
(iii) YOU DELETE CERTAIN CONTENT AND/OR DATA FROM YOUR DEVICE AND DO NOT RESTORE IT AFTER DELETION PURSUANT TO OUR OR YOUR OWN DATA RETENTION POLICIES, OR IF A DEVICE, DRIVE, DATABASE OR SERVER IS DELETED OR OTHERWISE REMOVED, EITHER INTENTIONALLY OR UNINTENTIONALLY, OR DUE TO A FAILURE OF THE DEVICE, DRIVE, DATABASE OR SERVER;
(iv) YOU MOVE CONTENT AND/OR DATA TO A LOCATION ON ANY DEVICE THAT IS NOT PART OF THE BACKUP CONFIGURATION, OR YOU UPGRADE THE OPERATING SYSTEM OF A DEVICE THAT RESULTS IN CHANGES TO YOUR FILE MAPPING OR ACCESS TO THE DEVICE;
(v) YOUR CONTENT AND/OR DATA IS CORRUPTED;
(vi) YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITTENT OR SLOW INTERNET CONNECTION;
(vii) YOUR DEVICE OR HARDWARE IS UNABLE TO MAKE A CONNECTION WITH OUR SERVERS OR NETWORK;
(viii) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO ANY PRODUCT OR SERVICE, OR YOUR ACCESS TO THE PRODUCTS AND SERVICES HAS OTHERWISE BEEN TERMINATED OR SUSPENDED.
(d) THE PRODUCTS AND SERVICES MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT PARKSIDETECH DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS; OR (ii) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR CUSTOMER CONTENT, WEBSITES, DEVICES AND NETWORKS. YOU ACKNOWLEDGE AND AGREE PARKSIDETECH IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.
(e) YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF THE YOUR ACCOUNT, YOUR CONTENT, DEVICES AND ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES. YOU ACKNOWLEDGE AND AGREE THAT PARKSIDETECH SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE ACCOUNT INFORMATION OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL COMMUNICATION ABOUT THE PRODUCTS AND SERVICES.
(f) YOU ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PARKSIDETECH OR ANY PARKSIDETECH EMPLOYEE, PARTNER OR AGENT WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PARKSIDETECH (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF PARKSIDETECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
No waiver by either party of any of the provisions or conditions of these Terms of Service shall be effective unless a waiver is in writing and signed by an authorized representative of both parties.
Neither party shall assign these Terms of Service or any associated Scope of Work, either in whole or in part, without the express prior written consent of the other party hereto. Any such attempted assignment shall be void.
In the event any provision of these Terms of Service is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and these Terms of Service, as so modified, shall continue in full force and effect.
Jurisdiction; Venue; Waiver of Jury Trial
These Terms of Service shall be governed, construed, and interpreted in accordance with the laws of the state of Arizona without regard to any choice of law provisions. Any claim or lawsuit arising from or relating to these Terms of Service shall be filed and maintained in a court of competent jurisdiction in Maricopa County. To the extent allowed by law, the parties each waive their right to a jury trial for any matter arising from or relating to these Terms of Service.
Unless the parties have expressly agreed otherwise, these Terms of Service shall not apply to, and shall not alter, modify or supersede any other Terms of Service between the parties.