(a) Services. The Customer hereby retains the Service Provider to perform the above listed services (collectively the “Services”) on behalf of the Customer. Service Provider may use subcontractors and consultants to perform some of the Services.
- Fees and Expenses
(a) As full consideration for the provision of the Services, Customer shall pay Service Provider fees (the “Fees”), which Fees shall be paid in the following terms.
40% due upon signing
50% due upon delivery
10% due upon completion
(b) Any amounts due to Service Provider not paid by Customer when due shall be subject to interest charges, from the date due until paid, at the rate of one percent (1%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts from Customer becomes past due for any reason, Service Provider may at its option and without further notice withhold further Services until all amounts owed have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Service Provider’s obligations under this Agreement.
(c) Expenses. Customer shall pay Service Provider for the reasonable expenses including, but not limited to, out of pocket travel and living expenses, incurred by Service Provider and its personnel in connection with its performance of the Services (the “Expenses”).
- Ownership of Work Product.
(a) Ownership of Work Product. This is not a work-for-hire agreement. The copyright in all deliverables created hereunder for Customer shall belong to the Service Provider. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of the Services hereunder are and shall remain the sole and absolute property of Service Provider, subject to a worldwide, non-exclusive license to Customer for its internal use as intended under this Agreement.
(a) Warranty. The Services to be performed hereunder are in the nature of professional services and installation. Service Provider does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.
(b) Limitation of Warranty. THE WARRANTY SET FORTH IN THIS SECTION 4 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. SERVICE PROVIDER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
- Confidential Information.
(a) The Parties acknowledge that pursuant to the performance of this Agreement, one Party may disclose to the other confidential and/or sensitive information (“Confidential Information”). “Confidential Information” shall mean all information disclosed by the disclosing Party to the receiving Party during the Term of this Agreement which is non-public and either proprietary or confidential in nature and related to the disclosing Party’s business or activities, including, but not limited to financial, legal, technical, marketing, sales and business information, which is (a) marked as confidential at the time of disclosure; or (b) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (c) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. The receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to only its employees, subcontractors, consultants and representatives who have a need to know such information to perform its obligations under this Agreement. The receiving Party shall protect the other’s Confidential Information by using the same degree of care it uses to protect its own information of a like nature, but no less than a reasonable degree of care. The term of confidentiality shall be three (3) years from the initial date of disclosure of the Confidential Information. The receiving Party shall promptly return all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the disclosing Party.
- Limitation of Liability; Actions.
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE UNDER THIS AGREEMENT TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SERVICE PROVIDER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CUSTOMER TO THE SERVICE PROVIDER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
(b) NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
- Force Majeure.
(a) Service Provider shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accidents, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, epidemics, local disease outbreaks, scarcity or rationing of gasoline or other fuel or vital products, inability to obtain materials or labor, in addition to any and all events, regardless of their dissimilarity to the foregoing, deemed to render performance of the Agreement impracticable or impossible under the law, in which event the Service Provider shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.
(a) This Agreement will commence as of the Effective Date and will terminate on the completion of the Services, unless earlier terminated in accordance with the provisions of this Agreement.
(a) Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured for fifteen (15) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party. In addition, Service Provider shall have the right to terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice to Customer.
- Governing Law and Venue.
(a) This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in California, Los Angeles. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
(b) Collection Expenses. If Service Provider incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Customer agrees to reimburse Service Provider for all such costs, expenses and fees including the Attorneys’ fees.
All notices or other communications required under this Agreement shall be in writing and shall be deemed effective when received and made in writing by either (i) e-mail, (ii) hand delivery, (iii) registered mail, (iv) certified mail, return receipt requested, or (v) overnight mail, addressed to the Party to be notified at the address set forth in the signed agreement.
- Entire Agreement; Modification; Waiver.
(a) This Agreement, and any exhibits attached hereto, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party.
The following agreement outlines LA Computer World’s offering as an outsourced IT solutions provider.
Our program is a fixed (per user/site) monthly cost that includes basic remote support during our standard business hours (as well as 24/7 emergency support*).
The program includes** management, monitoring, and security tools.
These tools include:
- Mosyle – Mobile Device Management application for desktops, laptops, and mobile devices.
- Syncro – Remote management and monitoring for desktops, laptops, and mobile devices.
- Patching – OS Patching and 3rd Party Patching services for endpoints.
- Mosyle Detection & Removal – Endpoint protection for Macs.
- Malwarebytes EDR – Endpoint protection for Windows.
Additionally, LACW’s support includes some key custom-tailored solutions:
- Helpdesk Solutions – Helpdesk Support, Ticketing Automations
- Hardware Lifecycle – Hardware Request Form, Device Inventory, In-House Repairs***
- HR Collaboration – Employee Lifecycle Management, On/Off-boarding Forms
- Onboarding/Offboarding – Complete onboarding/offboarding management, for deployment to a collection.
Note: Monthly charges will be reviewed each month to ensure billing accurately represents the state of the current environment.
*For an additional hourly fee
** Calculated on a per user basis
***In-House Repairs are billed at reasonable repair cost per repair
This support agreement is a monthly support program whereby Customer agrees to pay a fixed fee each month as stated in the terms below. In return, LACW will perform IT support, including remote help desk and on-site support (limited number of hours included, see terms for details). The program does not include new additions, upgrades, or changes to the environment. New additions, upgrades and changes will be billed on an hourly/project basis. Additional users added to the Customer environment will automatically increase the monthly service fee accordingly. Adjustments will be made on a monthly basis. Customer will be emailed a monthly invoice which payment is due upon receipt. Customer will provide a designated point of contact(s) that can authorize service requests. LACW will monitor Customer’s network for problems and will respond to requests for support during normal business hours and to emergency requests after business hours. If an onsite visit is required in an after-hours emergency response, it will be billed as detailed on the pricing page.
Standardization & System Lifecycle
LACW requires that the Customer make its best efforts to standardize its technology equipment and remain current with manufacturer warranties for all critical equipment. LACW will work with Customer to determine an acceptable equipment list that meets the requirements in the areas as outlined in the table below. LACW will not include the professional services to deploy standards-based technology to any existing location (unless completed during Onboarding). Noncompliance of these requirements may result in inability for LACW to meet SLA.
Adequate bandwidth to meet operational needs
|Cabling to centralized wiring location for all network devices||Adequate storage space for user data and IT operational needs||Maximum age of 5yrs
(unless upgraded to supported specs i.e. SSD/RAM)
|Supported Network Equipment Manufacturer||Adequate UPS management, capacity, and run-time||Supported Operating System|
Service Level Agreement (SLA)
Enterprise Service Level Agreement Details:
MASTER SERVICES AGREEMENT
- General Terms
LACW will perform additional services and create and provide additional deliverables, as more particularly described in Statements of Work (each an “SOW” and collectively “SOWs”) which will be entered into from time to time and, upon execution by the Parties, will be incorporated and made part of this Agreement (the “Services”). Prior to commencement of the Services an SOW will be prepared. In the event of a conflict between the terms of an SOW and the terms of this Agreement, the terms of this Agreement shall supersede and control. No obligation to either provide or pay for any additional Services shall be incurred by either Party until such time that an SOW has been executed by authorized representatives of both Parties. The existence of this Agreement shall not be construed as imposing any obligation upon LACW to agree to an SOW or to otherwise perform any Services for the Customer.
1.2. Scope of Services
(a) LACW will perform Services for the Customer including up to (2) hours of on-site support each month as of the Effective Date of this Agreement, if required. The Services of LACW exclude locations that are not geographically located within driving distance (up to 50 miles) from an LACW office.
(b) LACW will respond to all service calls based on the schedule provided in the Service Level Agreement (attached herein as Exhibit B). The support engineer of the LACW will attempt to ascertain the problem remotely. If the problem cannot be resolved, an on-site call may be made within the reasonable business hours specified below. The timing of the call shall not be unreasonable unless the severity of the situation requires so (e.g., server down is a higher priority than a desktop problem).
(c) The following services are not within the scope of this Agreement and LACW is not obligated to provide these services to the Customer, unless requested and paid separately by the Customer:
(i) Network and peripheral cabling services are not covered by this Agreement. If the Customer’s network cabling needs a repair, LACW can provide an estimate for the repair per Customer’s request. The repairs and/or replacements for the network and peripheral cabling will be billed separately.
(ii) Computer hardware required for repair, replacement, or modifications are not covered by this Agreement and they will be billed separately.
(iii) Warranty parts replacement by any manufacturer is not covered by this Agreement. Labor used to replace warranty parts is separately billable if the Customer chooses to have LACW perform such work. It shall be the Customer’s responsibility to read and understand all manufacturer’s warranties.
(iv) LACW may process an expedited request charge for the work orders commencing in less than seven (7) business days. To avoid such charges, LACW shall receive from the customer the signed work order and the deposit at least seven (7) business days prior to the work commencing. Any special rush requests, if not included in the work order, will be invoiced separately.
1.3. Fees and Expenses
As full and complete compensation for performing all Services specified in this Agreement and the SOW, the Customer will compensate LACW for all fees (the “Fees”) incurred in accordance with (a) the terms of this Agreement and in any SOW entered into by the Parties; and (b) the fixed hourly rates set forth herein. With respect to fees and expenses the following terms shall control:
(a) Customer will pay LACW for the actual hours spent by LACW’s personnel who perform the Services, in accordance with the rates specified in Section (c) below. LACW may increase the hourly rate charges for the Services by providing the Customer with at least thirty (30) days written notice of such increases. Rates are exclusive of taxes, levies, duties, governmental charges, and expenses (except for any LACW’s income taxes), which amounts will be billed to and paid by Customer.
(b) Payment for services not included in the Agreement or the relevant SOW will be billed at the discounted rate of $125.00 per hour during normal business hours, with a one-hour minimum. Normal working hours are between 7:00AM and 7:00PM Monday through Friday, Pacific Time, excluding public holidays. Hours worked outside normal working hours will be charged at a rate of 1.5 hours for every one hour worked. A two-hour minimum will be billed to the Customer if a systems engineer is dispatched on-site outside normal working hours.
(c) Any shipping charges incurred by LACW will be billed at reasonable rates for services under this Agreement. Should LACW personnel be requested to travel, the Customer will be responsible for all reasonable travel charges including, but not limited to, airfare, hotel, car, meal and per-diem. All trip requests will be submitted to Customer for approval at least three (3) business days prior to any travel.
1.4. Timeline and Additional Expenses
LACW shall not be liable if the project/work is delayed due to the reasons beyond control of LACW or its employees. Customer agrees to reimburse LACW for the additional expenses at a rate equal to LACW’s standard fees. Such expenses may include, but are not limited to: employee wages, materials, mileage, design and re-engineering fees, and lodging.
- Payment Terms
(a) LACW will prepare and submit an invoice to Customer monthly via email for the total purchase price, plus applicable sales taxes, fees and expenses for the products, labor and services rendered under this Agreement. Each invoice is due within 10 days of the service provided (“Due Date”). The Customer shall make payments to LACW via check, ACH, or Credit Card. A 3% of service charge will be applied to all credit card payments.
(b) If LACW does not receive the payment within thirty (30) days of the Due Date, LACW may put a hold on rendering on-site/remote support by providing five (5) calendar days written notice, until the late monthly fee has been fully paid.
(c) If Customer fails to make payment for any services or items purchased, and such failure continues for thirty (30) days, interest shall accrue on any amount due at the rate of 1% per month until paid in full. If any collection processes are instituted to collect any amounts due from Customer, the Customer shall pay the costs of collection plus reasonable attorney fees as specified in Section 18 hereof. LACW, at its own discretion, may negotiate alternate payment methods with Customer to resolve pending payments.
(d) In the event that LACW is not paid in full for the equipment that it had supplied to Customer, the unpaid equipment shall revert back to LACW, and LACW has the right to take actions necessary to repossess such equipment by refunding the Customer for the amounts paid for the equipment less costs incurred by LACW for labor, repossession and attorneys’ fees.
(e) Customer agrees that this Agreement represents a guarantee for payment of all past, present, and future amounts due to LACW. In the event Customer is a legal or corporate entity, all shareholders, directors, officers, and managers of the corporation, as well as any other person with actual or apparent authority to act on behalf of the entity, shall be individually responsible for all amounts owed by Customer to LACW. In addition, and to the fullest extent permissible under applicable law, Customer hereby grants LACW a security interest in the equipment and/or merchandise installed or delivered in connection with this Agreement, until all amounts due to LACW are paid in full, and grants LACW a purchase money security interest in all goods purchased hereunder, and in any proceeds thereof, to secure the unpaid purchase price of such goods, if any.
- Installation Services
Installation Services are not within the scope of Services. However, LACW may provide installation of the equipment if specified in the scope of work under the relevant SOW. If specified, LACW will install the equipment at the Customer’s premises. However, all required taxes, applicable permit fees, adequate AC electrical power, electrical conduit, electrical raceways, junction boxes, any standard electrical back boxes as required, suitable space for installation of equipment, core drillings, concrete and/or slab perforations, mill work, wood or cabinet work, dry wall, patching, painting, etc., and any other related work, shall be provided by and shall be the sole and exclusive responsibility of the Customer. All high-voltage panels and equipment must be installed by a licensed electrician provided by Customer or a general contractor as LACW does not provide these services. It is the Customer’s exclusive responsibility to provide all infrastructure requirements and high voltage work and to coordinate said work with Customer’s own contractors, engineers, architects, and other service providers. LACW does not assume any responsibility for the condition of any existing equipment, cables, wiring, and/or raceways that may be used and/or reused as part of the services.
LACW does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. LACW warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. LACW shall comply with all statutes, ordinances, regulations, and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder. LACW shall not be liable for any services or work product, or deliverables provided by third party vendors identified or referred to the customer by the service provider during the term of this agreement, customer’s exclusive remedy for breach of this warranty is reperformance of the services, or if reperformance is not possible or conforming, refund of amounts paid under this agreement for such non-conforming services.
4.1. Limitation of Warranty
The warranty set forth in this section is exclusive and is in lieu of all other warranties, express, implied, statutory or otherwise with respect to the services, work product or deliverables provided under this agreement, or as to the results which may be obtained therefrom. service provider disclaims all implied warranties including, but not limited to, the warranties of merchantability, fitness for a particular purpose, or against infringement. Service provider shall not be liable for any services or work product or deliverables provided by third party vendors identified or referred to the customer by the service provider during the term of this agreement, pursuant to any sow or otherwise. customer’s exclusive remedy for breach of this warranty is reperformance of the services, or if reperformance is not possible or conforming, refund of amounts paid under this agreement for such non-conforming services. LACW gives no warranty, express or implied, as to description, quality, merchantability, fitness for any particular purpose, productiveness, or any other matter, of any goods which the lacw shall supply. lacw shall be in no way responsible for their proper use and service, and the buyer hereby waives all rights of refusal and return of goods.
- Customer Responsibilities and Cooperation
Unless stated otherwise in the SOW, the Customer shall provide the following:
(a) A safe and secure working environment
(b) A safe and secure method for storing all materials and equipment related to this project
(c) Copies of floor plans including the furniture layout and outlet locations
(d) Adequate environmental controls at the work site (i.e. ventilation, lighting, etc.)
(e) A single point of contact for the duration of the project.
Customer agrees to comply with all reasonable requests of LACW and shall provide LACW’s personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Services under this Agreement.
- Ownership of Work Product
This is not a work-for-hire agreement. The copyright in all deliverables created hereunder for Customer shall belong to the Service Provider. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of the Services hereunder are and shall remain the sole and absolute property of
Service Provider, subject to a worldwide, non-exclusive license to Customer for its internal use as intended under this Agreement, and the Service Provider retains all moral rights therein. This Agreement does not grant Customer any license to any of the Service Provider’s products, which products must be separately licensed.
- Confidential Information
The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (i) information concerning the Parties’ products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, trade secrets, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, procedures, distribution methods, inventories, marketing strategies and interests, data, designs, drawings, work sheets, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of or while present at a Party’s facilities; and (iv) all other non-public information provided by the Disclosing Party hereunder. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
(a) Use of Confidential Information. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, consultants and representatives who have a need to know such Confidential Information to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. The Receiving Party shall always remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, consultants and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
(b) Exceptions. Confidential Information does not include information that: (i) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (iii) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (iv) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (v) is disclosed by Receiving Party with Disclosing Party’s prior written approval.
(c) Required Disclosures. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
(d) Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this Agreement, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication, and take all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
(e) Return of Confidential Information; Survival. Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement. Notwithstanding any expiration or termination of this Agreement, Receiving Party’s obligations to protect the Confidential Information pursuant to this Section will survive for two (2) years after the expiration or earlier termination of this Agreement.
No assignment of this Agreement, or any part, by the Customer, shall be valid for any purpose whatsoever. The Service Provider may subcontract its obligations and rights to a third-party.
During the term of this Agreement and for a period of two years following the termination of this Agreement, Customer agrees not to directly or indirectly solicit or induce or any of LACW’s employees or employ any of them on a full-time or part-time basis; Customer acknowledges that LACW’s relationships with its employees are among LACW’s most valuable assets. Further, Customer and LACW agree that it would be extremely difficult to redress the damages that would be sustained by LACW should Customer breach this provision and based thereon the Customer and LACW agree that in the event Customer should be found to have breached this provision, Customer shall pay LACW as liquidated damages a sum equal to one and one-half times the employee’s then current annual compensation from LACW. In no event, the Parties are not prohibited from responding to or hiring the other’s employees who inquire about employment on their own accord or in response to a public advertisement or employment solicitation in general.
- Limitation of Liability
Except for the damages caused by the Parties Confidentiality Obligations set forth in this Agreement, in no event shall LACW be liable under this Agreement to the Customer for any incidental, consequential, indirect, statutory, special, exemplary or punitive damages, including but not limited to, lost profits, loss of use, loss of time, loss of data, loss of profit, lost business opportunities, loss of monies, inconvenience, damage to good will or reputation and costs of cover as well as liability to third parties, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise and even if advised of the possibility of such damages or such damages could have been reasonably foreseen.
Nothing in this Agreement shall render LACW liable for any consequential damages to the structure or to the interior thereof or the contents therein, or for any injuries or damages sustained by any person. The owner of the structure shall be responsible for obtaining and maintaining insurance for the interior and contents of the structure. LACW shall not be liable hereunder if the equipment or the installation thereof is altered at any time after the installation by LACW is complete. This Section shall survive the termination of the Agreement.
This Agreement will commence as of the Effective Date and will terminate on the earlier of one (1) year (the “Initial Term”), or upon completion of the Services, unless earlier terminated in accordance with the provisions of this Agreement. Thereafter, the Agreement shall be automatically renewed for additional one-month terms (each a “Renewal Term”), unless not less than 30 days prior to the end of the Initial Term or any Renewal Term, either Party notifies the other of its intent not to renew the Agreement. The Initial Term and Renewal Terms, if any, are collectively referred to herein as the “Term.”
(a) Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured for twenty (20 days, by giving thirty (30) calendar days of written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
(b) Termination for Bankruptcy, Insolvency or Financial Insecurity. Either Party may terminate this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
(c) Termination for Convenience. LACW may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice.
(d) Obligations Upon Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay LACW for all Services rendered prior to the effective date of termination. Upon termination, each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination. Upon the termination of the Agreement, the Customer shall promptly return to LACW any equipment, materials or other property of the LACW which are in Customer’s possession or control.
Customer may return equipment delivered by LACW so long as such equipment is unused and in its original packaging. Customer shall be liable for a 25% restocking fee on all returned material and equipment. However, customer in no event may return customized goods to LACW.
All notices or other communications required under this Agreement shall be in writing and shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to
be notified at the address specified in the signed MSA.
- Force Majeure
LACW shall not be liable to Customer for any delay or failure for any failure or delay in the performance of its obligations under this Agreement, or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of LACW, including but not limited to: civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect.
- Entire Agreement; Modification
This Agreement, and any exhibits attached hereto constitute the entire understanding between the Parties with respect to LACW’s technical support and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement. No employees, representatives, or agents of LACW have any authority to bind LACW to any affirmation, representation, modification, or warranty concerning the services or materials provided thereunder unless specifically included within this Agreement as a written amendment executed by LACW.
- Variation of Terms and Conditions
LACW reserves the right to make changes to its Terms and Conditions by publishing them on their websites. Customer acknowledges that sufficient notice to this end is provided by LACW and LACW is under no obligation to notify Customer of the variations to its Terms and Conditions.
- Attorney’s Fees
If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
- Collection Expenses
If LACW incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due under this Agreement, Customer agrees to reimburse LACW for all such costs, expenses and fees.
- Governing Law and Venue
This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in California, Los Angeles. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.