GENERAL TERMS AND CONDITIONS
1. Service Agreements. This Schedule A, General Terms and Conditions (“General Terms and Conditions”), contains the general terms and conditions governing the relationship between the parties as part of any related Service Agreement. From time to time, the provisions of this service agreement may be updated by Finest City I.T. By signing below, Customer agrees to accept all updates, which, can found on our website within 10 days of any update.
2. Term. The term of each Service Agreement shall begin as of the Effective Date of such Service Agreement and continue for the term specified on such Service Agreement. The term of each Service Agreement shall automatically extend for the Renewal Term specified on such Service Agreement, unless such Service Agreement is terminated by either party by written notice of termination at least sixty (60) days prior to the expiration of such term then in effect, or until otherwise terminated pursuant to the provisions of such Service Agreement or these General Terms and Conditions.
3. Services. During the term of each Service Agreement, Finest City I.T. shall provide Customer the Services described on such Service Agreement. The Services shall be provided by Finest City I.T. in accordance with the timeline, if any, set forth on such Service Agreement. Customer shall satisfy all of Customer’s obligations, if any, set forth on such Service Agreement. Except as otherwise provided on a Service Agreement, Customer shall be responsible for providing the hardware, software, materials, information, and access to Customer’s facility as are necessary for Finest City I.T. to render the Services. Except as otherwise provided on a Service Agreement, Customer shall be responsible for the application, operation, maintenance, and support of its systems, hardware, and software, and all components thereof including, but not limited to, the implementation of appropriate procedures, training, and safeguards and backups. To the extent required by Finest City I.T., Customer shall provide Finest City I.T. with a reasonable amount of secure space at Customer’s facility for storage by Finest City I.T. of repair and maintenance materials as Finest City I.T. deems necessary to perform the Services. Except as otherwise provided on a Service Agreement, Finest City I.T. or its licensors own the Services and Customer shall have no proprietary rights in the Services or any software, processes, know-how, source code, source documentation, inventions, ideas, and the like included within the Services, or in the intellectual property contained therein, or any documentation related to the Services. Customer shall have a personal, non-transferable, and non-exclusive license to use any software and documentation provided by Finest City I.T. solely in connection with the Services. Customer agrees not to duplicate such software or documentation, or any part thereof, except that Customer may retain one copy for the purpose of backup. Customer agrees not to assign, sublicense, transfer, lease, rent, or share any license granted to Customer here under, and not to reverse assemble, reverse engineer, or decompile such software, or any part thereof, or otherwise misappropriate any of the intellectual property of Finest City I.T. To the extent that any software is included in or used by Finest City I.T. in the performance of the Services, such software may be subject to a separate license agreement, if required by Finest City I.T. Any hardware not claimed within sixty (60) days of notification to the Customer becomes the property of Finest City I.T. and will be sold to recoup any outstanding debt or fees or destroyed.
Except as otherwise provided on a Service Agreement, to the extent that Finest City I.T. or any third-party manufacturer specifies any preventative maintenance with respect to the Services, Customer shall be responsible for such maintenance. Customer is also responsible for performing backups and for keeping backup information in a safe and separate offsite location. From time to time, Customer may request that Finest City I.T. provide additional or amended Services not covered by an existing Service Agreement, and the parties hereto may, but are not required to, agree to a change order for Services either by amending an existing Service Agreement or by entering into a new Service Agreement. Such change order, if executed, will specify the Services to be provided by Finest City I.T. and terms for such Services, including, but not limited to, price terms.
4. Compensation. Customer shall compensate Finest City I.T. for the Services in accordance with the terms and conditions in this Service Agreement. Customer shall make payments to Finest City I.T. in accordance with such payment schedule at time of service regardless of result. Customer shall also pay any sales, use, value-added, or other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services. If the payment processed at the time of service is denied by either the Customer’s bank or credit card and additional invoicing is required, a fee of no less than 1 hour’s service will be assessed as well as a reprocessing fee of forty dollars ($40). Late payments shall accrue interest at the rate of one percent (1%) per month. If attempts to remedy payment are not resolved or ignored, Finest City I.T. retains the option to terminate the engagement immediately, without prior written notice to the Customer and without prejudice to any other remedy available to Finest City I.T. This may impact certain services important to the Customer such as email, security, backup and recovery systems, software patches, and others. Termination of this Service Agreement may be disruptive to Customer’s business and Customer agrees to hold Finest City I.T. harmless for loss of business or business interruption due to termination of this Service Agreement. Upon certified payment in full, Finest City I.T. will turn over all documentation and passcodes to Customer in compliance with this agreement as stated.
Customer shall reimburse Finest City I.T. for all reasonable expenses incurred by Finest City I.T. for travel, lodging, and meals when Finest City I.T. is required to perform Services at locations other than Finest City I.T.’s offices.
5. Installation. To the extent that any products or materials are to be installed by Finest City I.T., Finest City I.T. shall install such products or materials as specified in this Service Agreement. Installation dates are estimates only. Customer shall be responsible for preparation and maintenance of the site for such installation, including, but not limited to, providing necessary electrical power and communication lines and proper air conditioning and humidity control.
6. Warranties. EXCEPT AS EXPRESSLY STATED IN ANY SERVICE AGREEMENT OR THESE GENERAL TERMS AND CONDITIONS, FINEST CITY I.T. DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Finest City I.T. hereby warrants that any products or materials to be installed by Finest City I.T. shall be performed or installed by Finest City I.T. in a workman-like manner, consistent with generally prevailing industry standards for comparable services, and in compliance with the requirements of this Service Agreement.
Customer acknowledges that any products and materials may be manufactured or created by third parties and not Finest City I.T. Finest City I.T. hereby warrants that any of the products or materials manufactured or created by Finest City I.T., when properly installed, used, and maintained, shall conform to the published specifications of Finest City I.T. and shall be free from defects in material and workmanship under normal use and service for a period of thirty (30) days from the date of shipment, or thirty (30) days from the date of installation, of such products and materials, whichever occurs first. If during such period, Customer provides Finest City I.T. with written notice of a defect in such products or materials, and such defect is proven by Finest City I.T., in its sole discretion, Finest City I.T. shall correct such defect, replace such defective products and materials, or return to Customer the total amount paid by Customer to Finest City I.T. for such defective products or materials, and Customer shall have no other remedies under any Service Agreement or these General Terms and Conditions. To the extent required by Finest City I.T., any defective products or materials must be returned by Customer to Finest City I.T. or any repair facility designated by Finest City I.T. for inspection at Customer’s expense.
All warranties set forth in any Service Agreement or these General Terms and Conditions shall be null and void if the products or materials manufactured or created by Finest City I.T. are:
(a) altered, modified, or repaired by persons other than Finest City I.T. or persons approved by Finest City I.T., including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Finest City I.T.;
(b) misused, abused, or not operated in accordance with specifications of Finest City I.T. or the manufacturers or creators of the products or materials by persons other than Finest City I.T. or persons approved by Finest City I.T.; or
(c) subjected to improper site preparation or maintenance by persons other than Finest City I.T. or persons approved by Finest City I.T. Finest City I.T. shall not be responsible for any malfunction, non-performance, or degradation of performance of any products or materials manufactured or created by Finest City I.T. caused by or resulting directly or indirectly from installation by Customer, any alteration, modification, or repair that was not made by Finest City I.T. or persons approved by Finest City I.T. or any causes external to such products or materials, such as, but not limited to, power failures and surges.
Customer shall comply at all times with all applicable specifications, laws, regulations, and ordinances relating to its use of such products or materials. To the extent that such products or materials are manufactured or created by any third party, the warranties related to such products or materials come solely and exclusively from such third party.
7. Indemnification. If the Services or any of the products or materials manufactured or created or supplied by Finest City I.T. are proven to infringe a third party’s trademark, patent, copyright, or other intellectual property right, or Finest City I.T. determines that any of the Services or such products or materials shall infringe such rights, or Customer is enjoined from using any of such products or materials, or any part of same, then Finest City I.T., at Finest City I.T.’s sole option, and at the Customer’s expense, shall (1) replace such infringing Services, products or materials with non-infringing, equivalent, and conforming services, products, or materials, (2) modify such infringing Services, products, or materials, so such Services, products, or materials become non-infringing, but continue to provide the same type and quality of performance and services, or (3) procure the right for Customer to continue using such infringing Services, products, or materials. This Section shall not apply to any products or materials manufactured or created by any third party or manufactured or created by Finest City I.T. to Customer’s design or specifications. This Section shall also not apply to the extent the claim of infringement is caused by Customer’s misuse, abuse, or modification of any products or materials, Customer’s failure to use corrections or enhancements made available by Finest City I.T., or Customer’s use of such products or materials in combination with any attachments, features, or devices not supplied or approved by Finest City I.T. This Section states the entire liability of Finest City I.T. and the exclusive remedy of Customer for infringements by Services or any products or materials.
It is understood and agreed that Finest City I.T. and Customer will protect each other from liability from the acts of each other, which acts result in extra-contractual liability or punitive damages as follows:
(a) Customer agrees to indemnify Finest City I.T. against, and hold Finest City I.T. harmless from, any expense (including attorneys’ fees), judgment, fine and amount paid in settlement arising out of any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, which results from any act or omission of Customer, including any act or omission of Customer’s directors, officers, employees, agents, or subcontractors, alleged by the party instituting the action, suit, or proceeding to be tortuous, criminal, or otherwise in violation of any statute, regulation, or administrative order.
(b) In no event, shall Finest City I.T. be liable to the customer, any employee, agent, or contractor of Customer, or any third party, by reason of any representation, for any loss of profits, loss of business, or any indirect, incidental, special consequential loss, exemplary or punitive damages, expenses or other claims which arise in connection with the provision of the Service or any Remediation Services or these terms and conditions. The entire liability of Finest City I.T. under or in connection with this Service Agreement shall not exceed the amount of Finest City I.T.’s charges for the provision of the Service Agreement and these terms and conditions during the preceding one (1) month, except as expressly provided in this Service Agreement.
(c) Finest City I.T. shall not be liable to the Customer or be deemed to be in breach of this Service Agreement if the delay or failure was due to any cause beyond Finest City I.T.’s reasonable control.
8. Security. Customer understands and agrees that no security solution is one hundred percent effective, and any security measures can/may be circumvented by certain malware and/or rootkits and/or unknown means that were unknown at time of infection or purposely or intentionally installed. Finest City I.T. does not warrant or guarantee that all malware or malicious activity will be capable of being detected or removed. Customer is strongly advised to educate employees on proper cyber hygiene. Customer is advised to obtain insurance against cyberattacks and related business impacts.
9. Confidentiality. “Confidential Information” of a party hereto shall be deemed to include all information, materials, and data disclosed or supplied by such party (“Disclosing Party”) to the other party hereto receiving such information (“Receiving Party”), that Disclosing Party designates to be of a confidential nature. If disclosed in written or other tangible form or electronically, Confidential Information shall be marked by Disclosing Party as “Confidential.” If disclosed orally or visually, Confidential Information shall be identified as such by Disclosing Party at the time of disclosure and designated as “Confidential” in a written memorandum of such disclosure, summarizing the Confidential Information sufficiently for identification, to be delivered by Disclosing Party to Receiving Party within thirty (30) days of such disclosure.
The following information shall not be considered Confidential Information hereunder:
(a) information of Disclosing Party that is or becomes generally known within the relevant industry through no wrongful act or omission of Receiving Party or breach by Receiving Party of its obligations under any Service Agreement or these General Terms and Conditions;
(b) information which Receiving Party can establish and document by contemporaneous written proof was in the possession of or known by such party prior to its receipt of such information from Disclosing Party, without any obligation of confidentiality to Disclosing Party;
(c) information that is rightfully disclosed to Receiving Party by a third party with no obligation of confidentiality to Disclosing Party; and
(d) information which is independently developed by Receiving Party without use of or reference to Confidential Information of Disclosing Party, with Receiving Party bearing the burden of proving such independent development.
Confidential Information of Disclosing Party may not be used by Receiving Party for any purpose except in the performance of Receiving Party’s obligations on behalf of Disclosing Party under any Service Agreement and engaging in related discussions with Disclosing Party. Receiving Party shall maintain the confidentiality of all of Disclosing Party’s Confidential Information disclosed to Receiving Party hereunder and shall not disclose such Confidential Information to any person or entity, except as provided in any Service Agreement.
To the extent Receiving Party is required to disclose Confidential Information of Disclosing Party pursuant to any court or regulatory order, Receiving Party shall promptly notify Disclosing Party in writing of the existence, terms, and circumstances surrounding such disclosure so that Disclosing Party may seek a protective order or other appropriate remedy from the proper authority. Receiving Party agrees to cooperate with Disclosing Party in seeking such order or remedy. Receiving Party further agrees that if Receiving Party is required to disclose Confidential Information of Disclosing Party, Receiving Party shall furnish only that portion of Confidential Information that is legally required and shall exercise all reasonable efforts to obtain reliable, written assurances that confidential treatment shall be accorded Confidential Information.
Receiving Party shall promptly return to Disclosing Party all correspondence, memoranda, papers, files, records, and other tangible materials embodying Disclosing Party’s Confidential Information or from which such information may be derived, including all copies, extracts, or other reproductions thereof, when Receiving Party no longer needs such Confidential Information to accomplish the performance of Receiving Party’s obligations on behalf of Disclosing Party under any Service Agreement or when Disclosing Party requests its return (provided the customer is paid up to date and current), whichever occurs first, or certify to Disclosing Party that all such materials have been destroyed if Disclosing Party requests such destruction, with the exception of any Customer Record which Finest City I.T. is required to keep by law or for compliance purposes.
10. Insurance. Finest City I.T. will carry liability insurance relative to any service Finest City I.T. performs for the Customer. Customer is strongly advised to educate employees on proper cyber hygiene. Customer is advised to obtain insurance against cyberattacks and related business impacts.
11. Required Recommendations. Recommendations provided by Finest City I.T. are created with the intent to reduce problems from occurring and benefit Customer’s security and operations. If a reasonable recommendation is given to Customer that is intended to prevent or reduce outages, and/or comply with security regulations and Customer declines, Finest City I.T. is from that point forward not liable for any damages that occur as a result of such recommendation not being implemented. Finest City I.T. will provide recommendations that follow standard business practices at the time of creation with detail on what needs to be addressed. Finest City I.T. will fully explain in common terms the reasons for the requested changes. Finest City I.T. agrees to provide Customer up to ninety (90) days to act on a recommendation. In the event of a reasonable recommendation being a critical system component, Finest City I.T.’s liability will be waived for outages based upon non-implementation of such recommendation once Customer is notified until Customer has made a decision on the recommendation.
12. Non-Solicitation. During the term of any Service Agreement, and for a period of 12 months thereafter, Customer agrees not to, directly or indirectly, solicit, recruit, or employ any employee of Finest City I.T. without the prior written consent and compensation to Finest City I.T.
13. Equitable Relief. A breach of Section 9 or Section 12 herein by a party hereto cannot reasonably or adequately be compensated in damages in an action at law and shall cause irreparable harm and significant injury and damage to the other party hereto. By reason thereof, the aggrieved party hereto shall be entitled, in addition to any other remedies it may have under any Service Agreement or these General Terms and Conditions or otherwise, to seek and obtain immediate preliminary, interim, and permanent injunctive or other equitable relief to prevent or curtail any actual or threatened breach of such Sections.
14. Reporting Requirements. During the term of each Service Agreement, Finest City I.T. shall provide Customer with such oral or written reports as described on such Service Agreement. Customer will disclose to Finest City I.T. all Federal, State, and local regulations that govern Customer’s operations and will inform Finest City I.T. of any changes in regulations during the contract term. Customer is solely responsible for compliance.
15. Termination. The parties hereto may terminate this Service Agreement, and their respective obligations under this Service Agreement, as follows:
(a) by mutual, written consent of the parties hereto;
(b) by Finest City I.T., if Customer fails to pay to Finest City I.T. any payments under this Service Agreement when due, as contemplated by such Service Agreement;
(c) by any party hereto upon thirty (30)-days’ written notice if the other party hereto materially breaches any term of this Service Agreement or these General Terms and Conditions or otherwise fails to satisfy any promise or covenant made herein, and further provided that such party shall fail to cure said breach or failure within such period;
(d) Material breach or non-payment by any party hereto upon written notice to the other party hereto if a proceeding is brought by the other party hereto in any court or under supervision of any court appointed officer under any federal or state bankruptcy, reorganization, rearrangement, insolvency, or debt readjustment law, or if any such proceedings are instituted against the other party hereto and it fails to obtain dismissal of such proceeding within thirty (30) days after the same has been instituted; or
(e) by Finest City I.T., with or without cause, upon thirty (30)-days’ written notice of intent to terminate to Customer.
(f) If Customer chooses to terminate Managed Services prior to the two (2)-year initial term, Customer is responsible for all deferred costs for equipment and/or services.
Upon termination or expiration of the Service Agreement, for whatever reason, the Customer hereto shall immediately cease using any and all Confidential Information of the other party hereto related to such Service Agreement, unless specifically authorized, in writing by Finest City I.T., and shall promptly return to Finest City I.T. any and all of such information in its possession, and shall not publish or reveal, use, or divulge, directly or indirectly, any of such information unless specifically authorized, in writing, by Finest City I.T. Without limiting the generality of the foregoing, the obligation to promptly return Confidential Information shall include, but not be limited to, the obligation to promptly erase any and all of such Confidential Information, and all images, compilations, copies, summaries, or abstracts of such information, from computer storage, systems, and related storage devices, tools, and servers.
Termination or expiration of this Service Agreement shall not release any party hereto from any liability which has as of the date of such termination or expiration already accrued to the other party hereto, nor affect in any way the survival of any right, duty, or obligation of either party hereto which is expressly stated elsewhere in this Service Agreement or these General Terms and Conditions to survive such termination or expiration hereof. The provisions of this Section and of the Sections entitled Warranties, Indemnification, Limitation of Liability, Confidentiality, Non-Solicitation, and Equitable Relief shall survive any termination or expiration of this Service Agreement.
16. Notices. All notices, demands, and communications required or permitted in connection with this Service Agreement shall be in writing and shall be deemed effectively given in all respects upon personal delivery; e-mailed (with return receipt acknowledgement); if mailed, by registered or certified mail, postage prepaid, return receipt requested; if by overnight courier, the receipt of which is confirmed, addressed to the party hereto at the address set forth in the first paragraph of this Service Agreement (or such other address for a party as shall hereafter be specified by like notice). Either party hereto may from time to time change its notification address by giving the other party hereto prior written notice of the new address and the effective date thereof.
17. Relationship of the Parties. Neither this Service Agreement nor these General Terms and Conditions shall create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer- employee, master-servant, principal-agent, or other relationship whatsoever between the parties herein.
18. Successors and Assigns. The Service Agreement shall benefit and be binding upon the parties herein and their respective successors and assigns.
19. Force Majeure: Finest City I.T. shall not be liable to Customer for any delay or failure by Finest City I.T. to perform its obligations under this Service Agreement or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of Finest City I.T. , including but not limited to, labor disputes, strikes, other labor or industrial disturbances, acts of God, fire, floods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, riots, insurrections, embargoes, blockages, action, restrictions, regulations, or orders of any government, agency, or subdivision thereof, or temporary unavailability of qualified service personnel at Finest City I.T. ‘s office due to service call(s) received before Customer’s call.
19. Modification or Waiver. The parties herein may, by mutual agreement, amend any provision of this Service Agreement or the General Terms and Conditions provided that it is in writing. Finest City I.T. will, from time to time, update the General Terms and Conditions, as well as the Service Agreement and will notify customer of said changes via e-mail, phone, or mail. All updates will be available on Finest City I.T.’s website at https://finestcityit/generalserviceagreement. Customer agrees to such changes and delivery system of said changes, by signing this agreement. In addition, the parties may grant consent or waive any right to which it is entitled, under the Service Agreement or General Terms and Conditions, provided that each consent or waiver shall be in writing.
20. Governing Law. This Service Agreement and these General Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America. The parties herein consent to submit to the jurisdiction of the Courts of the State of California for any actions, suits, or proceedings arising out of or relating to this Service Agreement or to these General Terms and Conditions.
21. Arbitration Agreement. In the event of any dispute or disagreement between Finest City I.T. and the Customer with respect to any transaction under this Service Agreement, the dispute or disagreement shall be referred to three arbitrators, one arbitrator to be chosen by Finest City I.T. and another by Customer. The third arbitrator shall be selected by the arbitrators named by the parties to this Service Agreement, but should these arbitrators be unable to agree on the choice of a third arbitrator, the appointment shall be left to the President of the American Arbitration Association. The decision of a majority of said three arbitrators, in any matter submitted to them, shall be binding on the parties to this Service Agreement. The Arbitration shall be conducted at a location to be mutually agreed upon by Finest City I.T. and the Customer. The expense of arbitration shall be borne equally by Finest City I.T. and Customer. The parties agree that California Code of Civil Procedure section 1283.05 will be applied.
22. Severability. In the event that any provision of any Service Agreement or these General Terms and Conditions, or any word, phrase, clause, sentence, or other provision thereof, should be held to be unenforceable or invalid for any reason, such provision or portion thereof shall be modified or deleted in such a manner to make the Service Agreement or the General Terms and Conditions legal and enforceable to the fullest extent permitted under applicable laws.
23. Entire Agreement. These General Terms and Conditions and each Service Agreement and other attachments hereto constitute the entire agreement between the parties herein with respect to the subject matter hereof and supersedes all prior agreements, purchase orders, understandings, and negotiations, whether oral or written, between the parties herein with respect to such subject matter.