Last Modified: July 17, 2015
PLEASE READ THE CLIENT TERMS OF SERVICE AND ALL REFERENCED OR LINKED MATERIALS CAREFULLY BEFORE PURCHASING WEST COUNTY COMPUTERS SERVICES.
This Agreement is a legally-binding contract between you (Client) and West County Computers (WCC). West County Computers provides IT Services to you subject to, and conditioned upon, your acceptance of this Agreement.
BY PROCEEDING OR BY RECEIVING IT SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS, DO NOT RECEIVE IT SERVICES.
West County Computers periodically updates these Terms of Service. You will receive notice when these Terms of Service are modified. The notice will be delivered to the email address associated with your account.
This is not an employee agreement.
WHEREAS, Client requires IT consultation;
WHEREAS, WCC is a company specializing in IT and business development including, but not limited to, inbound IT, website copy writing, blogging, premium content creation, search engine optimization, social media IT, call-to-action button design, landing page design, email IT, website design, and graphic design;
WHEREAS, WCC is desirous to provide IT consultation to Client;
WHEREAS, Client is desirous to secure the services of WCC for on-going consultation;
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the Parties hereto, each intending to be legally bound, do hereby agree as follows.
- Recitals. The Parties agree that the recitals set forth on order form are true and correct and are hereby incorporated herein by reference.
- Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below, unless otherwise provided for herein.
- WCC. Means West County Computers and any entity which directly or indirectly controls, is controlled by, or is under common control with West County Computers.
- Client. Means the person or entity using the IT Services identified in the applicable billing statement or order form as the WCC customer.
- IT Services. The professional services provided to Client as requested on order form.
- Order Form. The WCC approved form by which Client agrees to subscribe to the IT Services provided by WCC.
- Compensation to WCC:
- Client shall pay WCC a retainer for IT services (described in paragraph 2) beginning on the date Client agrees to these Terms of Service and every month thereafter in the amount specified on the order form.
- Payment by credit card. If applicable, Client will provide WCC with valid and updated credit card information or bank account information. Customer authorizes WCC to charge Client’s credit card or bank account for all fees agreed to in this Agreement and on order form. Client further authorizes WCC to use a third party to process payments, and consents to the disclosure of its payment information to such third party.
- Payment Information. Client shall ensure that all details provided regarding the Client’s contact information, billing information, and credit card information, where applicable, are correct and undertakes to promptly update such information when changes to such information occurs. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance (as described in paragraph 5) throughout the Initial Term and Renewal Terms.
- Business Expenses:
- WCC shall be responsible for its own business expenses.
- Client shall be responsible for its own business expenses to include costs directly related to executing action items derived from WCC consultation. WCC will take no action that will cost Client more than the regular monthly retainer without the prior approval of Client.
- Accounting and Payments:
- Client shall pay (fee described in paragraph 3) on a monthly basis, beginning on the date of this contract.
- Order forms completed on, or prior, to the 15th of the month will begin effective the first day of the same month. Example: Orders received on or before May 15th will begin IT services effective May 1st. All contracted services will be effectively increased for an appropriate amount of time to ensure one full month of IT services has been received by the Client as contracted by this Agreement and the order form.
- Order forms completed after the 15th of the month will begin effective the first day of the following month. Example: Orders received on or after May 16th will begin IT services effective June 1st. Client will receive preparatory consultation from WCC to ensure IT services may effectively begin on the 1st of the upcoming month.
- The Parties shall keep, maintain, and preserve at its place of business, accurate books of account and records covering all transactions relating to this Agreement for at least two (2) years subsequent to the expiration or earlier termination of this Agreement.
- Client and WCC and/or a duly authorized representative shall have the right, upon reasonable notice and during business hours, to examine said books of account, records, and all other documents and material in the possession, or under the control of, the Parties with respect to the subject matter and terms of this Agreement and shall have free and full access thereto to examine and make extracts there from.
- Suspension for Non-Payment. WCC may suspend Client’s IT services for cause upon ten (10) days’ notice to Customer of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period. WCC will not suspend the IT service while Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Term and Events of Termination:
- Initial Term. The initial term of this Agreement shall commence on the effective date of this Agreement (as more particularly described herein) and, unless terminated in accordance with the provisions set forth herein, shall continue for a period of twelve (12) months (“Initial Term”).
- Renewal Term. Unless written notification is received by WCC at least 30 days prior to the end of the Initial Term, this Agreement will automatically renew for a period of twelve (12) months unless terminated in accordance with the provisions set forth herein. The Agreement will continue to renew each twelve (12) months after each Renewal Term unless written notification is received by WCC at least 30 days prior to the end of the Renewal Term.
- Termination Upon Breach. If a Party hereto breaches any provision of this Agreement, the other Party referred to for the purposes of this subparagraph as the “Non-Breaching Party,” shall notify the Party allegedly breaching this Agreement, referred to for the purposes of this subparagraph as the “Breaching Party,” in writing of the alleged breach. Upon the Breaching Party’s receipt of notice of the breach via Certified Mail, such Party shall have thirty (30) days to cure the alleged breach to the satisfaction of the Non-Breaching Party. If the Breaching Party is unable to cure the breach to the satisfaction of the Non-Breaching Party, such Party shall have the right to immediately terminate this Agreement. Under the terms of this Agreement, paragraphs 7 and 8 as well as other applicable paragraphs and sub-paragraphs survive.
- Termination for Other than Breach. Either Party may terminate this Agreement immediately following written notice to the other Party if the other Party:
- Ceases to do business in the normal course,
- Becomes, or is declared, insolvent or bankrupt,
- Is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not discussed within 60 calendar days, or
- Makes an assignment for the benefit of creditors.
- Good faith. Upon Agreement termination for any reason contained within paragraph 6, both Parties will make all reasonable efforts to provide the other Party with all materials and information pertinent to the receiving Party, but not proprietary to the giving Party.
- Refund Policy:
- If you are not 100% satisfied with your purchase, you can terminate the contract and get a full refund for up to 30 days from the date you purchased it.
- Ownership of Materials
- WCC agrees that all materials, reports, and other data or materials generated or developed by Client as a result of WCC consultation under this Agreement or furnished by Client to WCC shall be and remain the property of Client. WCC specifically agrees that all material generated or developed under this Agreement shall be considered works made for hire and that such material shall, upon creation, be owned exclusively by Client. To the extent that any such material, under applicable law, may not be considered works made for hire, WCC hereby assigns to Client the ownership of copyright in such materials, without the necessity of any further consideration, and Client shall be entitled to obtain and hold in its own name all copyrights in respect of such materials.
- If and to the extent WCC may, under applicable law, be entitled to claim any ownership interest in the materials, reports and other data or materials generated or developed by WCC under this Agreement, WCC hereby transfers, grants, conveys, assigns and relinquishes exclusively to Client all of WCC’s right, title and interest in and to such materials, under patent, copyright, trade, secret and trademark law, in perpetuity or for the longest period otherwise permitted by law.
- To the extent that any preexisting rights are embodied or reflected in the materials, WCC hereby grants to Client the irrevocable, perpetual, non‐exclusive, worldwide, royalty‐free right and license to (1) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such preexisting rights and any derivate works thereof and (2) authorize others to do any or all of the foregoing.
- WCC hereby represents and warrants that it has full right and authority to perform its obligations and grant the rights and licenses herein granted and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement. WCC covenants and agrees that it shall not enter into any such agreements.
- Protection of Proprietary Materials
- From the date of execution hereof and for as long as the information or data remain Trade Secrets, the Parties shall not use, disclose, or permit any person to obtain any Trade Secrets of either Party, including any materials including either Party’s financial documents as well as other documents developed or generated hereunder (whether or not the Trade Secrets are in written or tangible form), except as specifically authorized by the other Party.
- As used herein, “Trade Secret” shall mean a whole or any portion or phase of any technical or financial information, design, process, procedure, formula, or improvement that is valuable and not generally known to competitors of either Party.
- Irreparable harm should be presumed if either Party breaches any covenant in this Agreement for any reason. This Agreement is intended to protect each Party’s proprietary rights pertaining to the materials, and any misuse of such rights would cause substantial harm to either Party’s business. Therefore, Both Parties agree that a court of competent jurisdiction should immediately enjoin any breach of this Agreement, upon a request by either Party.
- Upon the request of Client, but in any event upon termination of this Agreement, WCC shall surrender to Client all memoranda, notes, records, drawings, manuals, computer services and other documents or materials (and all copies of same) pertaining to the materials, reports and other data or materials generated or developed by WCC or furnished by Client to WCC, including all materials embodying any Trade Secrets. This Section is intended to apply to all materials made or compiled by WCC, as well as to all materials furnished to WCC by Client or by anyone else that pertain to the materials.
- Each Party shall defend, hold harmless, and indemnify the other Party (including its subsidiaries, affiliates, successors, officers, directors, employees, and agents) from and against all losses, claims, damages, liabilities, and expenses in connection with third-party claims relating to or arising from such Party’s performance hereunder, except to the extent such loss, claim, damage, liability, or expense results from the breach of any representation, warranty, or covenant by the other Party in this Agreement, or the gross negligence or willful misconduct of the other Party or its officers, directors, employees, or agents, or any directors, employees, or agents of its subsidiaries or affiliates.
- Conflict Resolution
- The purpose of this clause is to insure that all (emphasis added) conflicts that may arise from this agreement shall be resolved outside (emphasis added) of the court system. Any and all disputes shall be first dealt with the Parties meeting and/or discussing together and making every reasonable effort, with common goals to resolve such dispute(s). As a result, the parties agree that all (emphasis added) conflicts between them shall be completely resolved through binding arbitration by no more than one (1) arbitrator that neither Party has used in the past nor where a personal relationship has in the past or now exists. The arbitration shall be conducted in the state of California, in Sonoma County.
- Notice of demand for arbitration shall be prepared in writing by either Party and sent via certified mail or overnight carrier to the other Party. Refusal to receive the demand shall be considered as received by the refusing Party. In the event that the Party receiving the notice of demand for arbitration objects to submitting the claim or dispute to arbitration, that Party shall, within ten (10) days of receipt of the notice, make application to the appropriate Court in Santa Rosa, CA for an order staying the arbitration pursuant to the California Arbitration Code. Failure to make such application in a timely manner (within 10-30 days of receipt of the notice) shall constitute a waiver of any objection to submitting the claim or dispute to arbitration and full agreement to the demand submitted by the requesting Party.
- The Party desiring the resolution shall choose an Arbitration Firm, or Arbitrator, to arbitrate the dispute(s), except that neither party shall take depositions, serve interrogatories or other discovery (except for production of all pertinent documentation or evidence to be submitted to the Arbitrator for the review of the issue(s). The Arbitrator does not have to be certified in the state in which the Arbitration is to take place.
- All matters shall be settled at no more than (1) one arbitration hearing. Such hearing shall be conducted and concluded within a reasonable time, not to exceed forty (45) five days, after the demand for arbitration is submitted by the Party requesting the arbitration.
- The Arbitrator will hear the facts of both Parties and will then render his or her decision within seven (7) business days after the completion of the arbitration hearing. The Parties agree that the Arbitrator’s decision(s) shall be final, binding and non-appealable on the Parties and their successors and assigns and the prevailing Party shall be entitled to be paid all fees including, but not limited to, arbitrator and arbitration management fees, when applicable, attorney’s fees associated with the process of the arbitration and the filing of the decision in a court of law, if any.
- In the event that the dispute is a monetary dispute, all amounts awarded by the Arbitrator shall be paid within seven (7) days after notice of the Arbitrator’s decision, including all associated costs, if any. The non-prevailing Party shall pay the prevailing Party all costs associated with the arbitration and any attorney’s and court filing fees within seven (7) days after receiving the arbitrator’s decision. In the event that the prevailing Party must submit the decision to a court to enforce the decision, the non-prevailing Party shall pay all costs associated with the enforcement including, but not limited to, all attorneys’ fees and court and filing fees. In no event shall either Party be required to pay legal fees to the other Party that are in excess of $300 USD per hour.
- In the event that the Party receiving the Demand for Arbitration refuses to respond to the Demand for Arbitration, for any reason whatsoever, the Party unwilling to respond, appear or participate in the arbitration, shall forfeit their right to arbitrate and the Party who requested the arbitration shall win by default. Such default shall be considered final, binding and non-appealable and any decision made by the Arbitrator may be filed into a court of law for judgment.
- The Parties further agree that in the event of a conflict, it shall not preclude either Party from continuing to perform their respective responsibilities and duties as provided in this Agreement. Any work-stoppage shall be deemed as a material breach of this Agreement and the Party refusing to continue their responsibilities and duties under the terms of the Agreement shall be subject to financial damages. This Agreement shall be exclusively governed by the laws of the state of California.
- In the event that the arbitrators award must be submitted to the court for enforcement and the non-prevailing Party decides to defend the award, the non-prevailing Party agrees that they shall not take depositions, serve interrogatories or other discovery (except for production of all pertinent documentation or evidence to be submitted to the court for the review and facts of the issue(s)/award). The non-prevailing Party shall be solely responsible for all attorneys’ fees, court costs and filing fees of the prevailing Party. In no event shall either Party be required to pay legal fees to the other Party that are in excess of $300.00 USD per hour.
- Force Majeure:
- Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected.
- WCC may not assign, transfer, sub-license, pledge, mortgage, or otherwise encumber, in whole or in part, the Agreement except as approved by Client in writing, in its sole and absolute discretion.
- Nothing contained in this Agreement shall constitute or be construed to be or to create a partnership, a joint venture or any other relationship between Client and WCC , other than as Parties to this Agreement. Neither party shall have the right to obligate or to bind the other in any manner whatsoever, except as provided in this Agreement, and nothing contained in this Agreement shall give or is intended to give any rights of any nature to any third party.
- Attorney’s Fees:
- In the event that any legal action or any other proceeding (except for Pre-Mediation/arbitration Meetings and mediation/arbitration) is commenced to enforce any provision of this Agreement or as a result of a breach, default or misrepresentation in connection with any provision of this Agreement, the prevailing Party shall be entitled, in addition to any other relief to which said Party may be entitled, to recover reasonable attorney’s fees and costs of litigation incurred in such action or proceeding Neither Party shall be responsible for any attorney’s fee that exceeds $300.00 per hour.
- Notices by either Party to the other shall be in writing and shall be given by sending them by registered or certified mail, overnight courier, by hand delivery or by sending them by facsimile with confirmation copy sent same day by first class U.S. Mail or hand delivery. All statements and notices hereunder shall be given at the respective addresses of Client and WCC as set forth on the first page of this Agreement unless written notice of a change of address is given. Notices shall be deemed effective the date the notice is given in the manner provided above (except in the case of mail, which shall be the earlier of the date of actual receipt or the fifth (5th) business day after the mailing of such notice), except that notices of change of address shall be effective when received.
- For the purposes of this Agreement, “Confidential Information” shall mean any information, data and knowledge, concerning a Party’s business and affairs, regardless of form (whether in writing, orally, or through visual or electronic means), which is delivered or disclosed by the Parties, of which the recipient (including any subsequent transferee of such information) learns or obtains orally, through observation, or through analysis of such information, data or knowledge, and also includes all notes, analyses, compilations, studies or other material prepared by the receiving Party or its agents or advisors containing or based, in whole or in part, on any information provided or shown by the other Party.
- Each Party hereto agrees that it will not before, during ,or after the respective terms of this Agreement, permit the duplication, use or disclosure of any Confidential Information of the other Party, including the terms of this Agreement, to any person (other than its own employees, agents or representatives who must have such information for the performance of the obligations hereunder), unless such duplication, use or disclosure is specifically authorized by such Party.
- Each Party acknowledges and agrees that the other Party’s Confidential Information shall be deemed a trade secret. Confidential Information shall not include information that, although disclosed or made available by a Party (the “Disclosing Party”) or any of its employees, agents or representatives to the other Party (the “Receiving Party”) or any of its employees, agents or representatives:
- Can be obtained by persons not subject to confidentiality or use restrictions from public sources, including periodicals, government and industry publications and other media that is readily accessible to the public or competitors of the Disclosing Party,
- Has been disclosed by the Disclosing Party or any of its employees, agents or representatives to any unaffiliated third Parties without the imposition of any restrictions or prohibitions on disclosure or use thereof and has been, as a result, disclosed by that third party to other third parties, or
- Information that the Receiving Party can demonstrate convincingly was in its possession prior to its disclosure to the Receiving Party by the Disclosing Party or any of its employees, agents or representatives; provided, however, that the Receiving Party had not obtained possession of such Confidential Information from anyone that the Receiving Party knew or should have known was subject to restrictions on its right to disclose such information to the Receiving Party, either pursuant to an agreement or by reason of his position or relationship with the Disclosing Party.
- If Confidential Information is subject to disclosure pursuant to any order, decree, subpoena or other validly issued judicial or administrative process or is otherwise required by law to be disclosed, the Receiving Party may do so provided that it promptly notifies the Disclosing Party of its intention to do so, so that the other Party may seek to obtain a protective order or other appropriate relief from disclosure. The Receiving Party shall provide such reasonable cooperation as the Disclosing Party may request in connection with efforts by the Disclosing Party to quash the subpoena or other legal process or to obtain a protective order or other appropriate relief from disclosure.
- Each party shall explicitly inform each employee, agent, representative, business contact, supplier, contractor or subcontractor who will have access to any Confidential Information of the confidential nature of such information. Each party shall be responsible for the actions of its officers, directors, employees, agents, representatives, heirs, suppliers, contractors and subcontractors.
- Without limiting the foregoing, each Party shall not reproduce, release or in any way make available or furnish, either directly or indirectly to any person at any time, any information concerning the managers, directors, officers, employees, agents, or representatives (“Facility Members”) of any facility owned or operated by the other Party. Each Party agrees not to use the information concerning such Facility Members in any manner except to perform its obligations under this Agreement. Each Party shall at all times maintain any information, including lists, relating to such Facility Members physically separate and distinct from any information the Party may maintain that is unrelated to this Agreement.
- Each Party shall immediately report to the other Party any knowledge, which it has with respect to any attempt by any person to duplicate, use or disclose Confidential Information in violation of this Agreement.
- Each Party shall use its best efforts to maintain the security of the Confidential Information.
- Entire Understanding:
- This Agreement constitutes the entire understanding between Client and WCC and shall not be modified or amended unless in writing and signed by both Parties. The failure or the delay by either Party in enforcing any of its rights under this Agreement shall not be deemed a waiver, and such Party may, within such time as is provided by applicable law, commence appropriate suits, actions or proceedings to enforce any or all such rights.
- Representations and Warranties of Client:
- Client hereby represents and warrants to WCC as of the date of this Agreement as follows:
- Organization. Client is a company duly organized, validly existing, and in good standing under the laws of the state in which it is located,
- The entry by Client into this Agreement does not violate any other agreement by which he is bound, and the execution and delivery of this Agreement does not, and the consummation of the actions contemplated in this Agreement will not, conflict with any agreement, license, or other instrument or understanding to which Client is a party, or by any judicial decree, order or provisions of law by which Client, the products or services are bound or subject.
- Representations and Warranties of WCC:
- WCC hereby represents and warrants to Client as follows:
- WCC is a limited liability company duly organized, validly existing, and in good standing under the laws of the state of California,
- The entry by WCC into this Agreement does not violate the Articles of Organization of WCC,
- The entry by WCC into this Agreement does not violate any other agreement by which it is bound, and the execution and delivery of this Agreement does not, and the consummation of the actions contemplated in this Agreement will not conflict with any agreement, license or other instrument or understanding to which WCC is a party, or by any judicial decree, order or provisions of law by which WCC, the products or services are bound or subject.
- Governing Law:
- This Agreement shall be exclusively construed in accordance with and governed by the laws of the state of California and the Parties by this Agreement consent to jurisdiction of the courts of the state of California, with the venue of any litigation resulting from this Agreement or arising from the transaction contemplated hereunder in Sonoma County, California.
- Partial Invalidity:
- In the event that any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not affect the validity or enforceability of any other provision hereof.
- Electronic Transmission:
- If a copy of this Agreement is transmitted electronically by facsimile, email or similar device, such document shall for all purposes be treated as if manually signed by the Party whose electronic signature appears. This shall include all other communications that apply to this agreement in the future.
- Effective Date:
- The effective date of this Agreement shall be the date first above written after all Parties hereto have duly executed this Agreement.
- Time is of the Essence:
- For purposes herein, the Parties agree that time shall be of the essence of this Agreement.
- Caption and Paragraph Headings:
- Captions and paragraph headings contained in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement, nor the intent of any provision hereof.
- This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement.
- Binding Effect:
- This Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, personal representatives, successors and assigns.
- All terms and words used in this Agreement regardless of the number and gender in which used, shall be deemed to include any other gender or number as the context or the use thereof may require.
- It is agreed that both Parties negotiated this Agreement and any ambiguity shall not be construed against any Party. It is agreed that both Parties have negotiated this Agreement and the normal rule of construction to the effect that ambiguities are to be resolved against the drafting Party is not appropriate and shall not be employed in the interpretation of this Agreement.