*Holidays include: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, Christmas Day, and New Year’s Eve. If a Holiday falls on a Saturday or Sunday, the Holiday is observed on the Friday before or the Monday after as appropriate.

 

Billing Terms

 

Resource rates will be calculated and billed in quarter (0.25) hour increments starting from the minimum. Above listed rates may be periodically reviewed and may be updated in accordance with current market conditions. All rates listed above are subject to change at any time at Fornida’s sole discretion.

 

Billing Minimums

 

Remote work - Minimum 0.25 hoursOn-site, after-hours, and holiday work - Minimum 2.00 hours

 

 

3. PRODUCT SALES

 

3.1. In order to facilitate the Services, Fornida may act as reseller of certain products to the Client including, without limitation, hardware, software and/or software licenses (“Product(s)”). In all such cases, Client hereby acknowledges that Fornida is not the manufacturer for provider of such Products, and that Products are deemed Purchased by the Client directly from the respective manufacturer or provider. Accordingly, the use of such Products shall be governed solely between the Client and the original manufacturer or provider in accordance with the terms and conditions of the original manufacturer or provider.

 

3.2. The Client represents and warrants that the Products will not be utilized by the Client in any manner or for any purpose which may reasonably be foreseen to result in potential personal injury, loss of life, or catastrophic property damage, including but not limited to nuclear projects and life support and/or other life sustaining functions. In the event any Products are used in such ways Fornida shall not be liable in whole or in part for any claim or damages resulting from such use.

 

3.3. Fornida shall coordinate shipping of Products to the Client FOB at the point of shipment. This means all transportation costs, insurance, and other expenses in connection with such shipment shall be borne by the Client itself. Likewise, any risk of loss will pass to the Client immediately upon delivery of the Products to the common carrier or the Client’s representative at the point of shipment.

 

3.4. As security for amounts due from the Client to Fornida, the Client hereby grants Fornida security interest in and to the Products, though such Products may be in the possession of the Client. Accordingly, Fornida is hereby authorized to execute and file any documentation necessary to perfect this security interest.

 

3.5. Client shall be solely responsible to obtain any and all licenses, permits and approvals as may be required by any governmental agency, foreign or domestic, in connection with the use of the Services or Products.

 

 

4. TERM & TERMINATION

 

4.1. Auto-Renewal. Upon termination of the original term of any Service Agreement (as specified in the “Agreement Overview” section), the Service Agreement shall automatically-renew for an additional term of twelve months with prices for this renewal term increasing not less than 5%. Client must provide notice to Fornidain writing at least thirty (30) days before the end of the term to terminate Service Agreement and prevent auto-renewal.

 

4.2. Without Cause. Termination of any Service Agreement before the end of the contracted term date will be considered an “Early Termination”. Early termination “with cause” is acceptable only when meeting criteria as provided under “Remedies” Section 8.1of this MSA. Early termination by the Client that does not meet the criteria established in section 8.1 will be deemed “without cause”.

 

The Client understands and acknowledges that early termination without cause creates an undue hardship for Fornida, causing damages to Fornida which would be difficult or impractical to determine. As such, the Client agrees that in event of the Client’s early termination without cause, the Client shall pay to Fornida as liquidated damages and not as a penalty, an amount equal to 50% of the remaining months of service (Damages = (monthly recurring fee X remaining months) divided by 2), which shall be Fornida’s sole and exclusive remedy. Additionally, all discounts enjoyed by the Client will be revoked effective from the first day of the Services, and Client shall pay for the Services at standard rates as indicated on the applicable TOS, for all months of received Service.

 

4.3. Default. In the event that one party (a “Defaulting Party”) commits a material breach of this MSA, a Service Agreement, any TOS, or SOW, AND provided that; (i) the non-Defaulting Party has previously notified the Defaulting Party of the details of the specific breach in writing, and (ii) the Defaulting Party has failed to cure the default within ten (10) business days following receipt of such written notice from the non-Defaulting Party, THEN, the non-Defaulting Party shall have the right, but not the obligation, to immediately terminate the applicable MSA, Service Agreement, TOS, or SOW.

 

Where the Client is the Defaulting Party, any termination of the Service Agreement pursuant to this 4.3 will be considered an Early Termination by the Client without cause and shall be subject to the terms of section 4.2 of this MSA.

 

4.4. Contract Review. Fornida reserves the right to periodically review any Service Agreement(s) and if deemed unprofitable, Fornida may terminate such Service Agreement at Fornida’s sole discretion with 30 days notice to the Client. In the event of such a termination, the Fornida may or may not propose to Client, a new Service Agreement with different quantities, pricing, and/or terms.

 

4.5. Transition. In the event a Service Agreement is terminated for any reason whatsoever, and provided that all fees due and owing to Fornida have been paid to Fornida in full, any Client data held by Fornida shall be returned to the Client in a commercially reasonable manner and time frame, not to exceed fifteen (15) calendar days following the date of request of the return of such data by Client. In the event that Client requests Fornida’s assistance to transition to a new service provider, Fornida may decide to do so in its sole discretion, provided that (i) all fees due and owing to Fornida under this MSA are paid to Fornida in full prior to Fornida performing such a transition for Client, and (ii) Client agrees to pay Fornida its then-current hourly standard market rate for such assistance with the transition.

 

Fornida shall have no obligation to store or maintain any Client data in Fornida’s possession or control beyond fifteen (15) calendar days following the termination of the Service Agreement in question. Fornida shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Fornida’s deletion of Client data beyond the time frames described in this Section.

 

4.6. Impact. Unless provided otherwise, termination of a specific Statement of Work shall not function as a termination of any other Statement of Work or as a termination of any Service Agreement or TOS.

 

4.7. Revisions. From time to time, Fornida may revise the terms and conditions of this MSA or a TOS (including, without limitation, any of the policies incorporated by reference therein). In such event, notice of revisions to these documents shall be posted to the legal section of the Fornida Website (“the Website”) athttps://www.fornida.net/content/terms and deemed given to the Client and effective on the date posted to the Website. In the event the Client is not willing to accept any documentation so revised, the Client shall send a detailed message describing the Client’s issues with the revisions to support@fornida.com within five (5) days after such revisions are posted to the Website. Fornida shall have fourteen (14) days to respond to the issues described in the Client’s email. The Client agrees that removal of the revision to which the Client protested shall be acceptable accommodation and in such case agrees to continue Service. If Fornida acknowledges that resolution cannot be reached, Client may request termination of Service with 30-day notice. By continuing to use the Service after revision(s) are in effect, Client hereby accepts and agrees to all such revisions as legally binding.

 

 

5. CONTACTS

 

5.1. Authorized Contact Person. Client shall designate one or more authorized contact person(s) (each, a “Client Contact”) with whom Fornida shall communicate with as regards the Services. The Client may at its option designate one or more Client Contact with respect to individual Statements of Work. Each Client Contact shall be a point of contact for Fornida for the respective Services concerned, and shall be authorized to provide, modify and approve on Client’s behalf, work direction, Statements of Work, and Change Orders. The Client understands and agrees that Fornida shall be permitted to act upon the direction and apparent authority of each Client Contact, unless and until Fornida receives written notice from Client that such Client Contact is no longer authorized to act on Client’s behalf. If the Client wishes to add or remove a Client Contact, or modify a Client Contact’s information or authority, the Client must notify Fornida in writing of the change(s) including (in the event of the addition of a Client Contact) details of the Client Contact’s name, address, email address and telephone number.

 

 

6. WARRANTIES

 

6.1. Manufacturer’s warranties for each Product shall pass through to the Client. Fornida agrees to assist with implementation of Client’s rights under such Manufacturer’s warranties, including as to product return. The manufacture’s standard applicable fees may apply to any product return. However, Forinda shall not in any event be responsible for any product warranty or return solution beyond what is provided for in the manufacturer’s warranty.

 

6.2. All Products are provided to the Client “as is”. Client agrees that it accepts the Products “as is” and that Client may be entitled to replacement from the Product manufacturer in the event of any defect. Fornida makes no representations or warranties regarding such Products, for their fitness for Client’s purpose. Fornida does not provide any guarantee regarding the performance or quality of the Products, and provides no insurance in connection with such Products. All Products (including but not limited to third party hardware, software, peripherals and accessories) are subject to the manufacturer’s or provider’s original terms or service agreement. Fornida shall not have any liability to the client regarding such Products, but will apply reasonable effort to assign any applicable Product warranties to the Client.

 

6.3. In the event of failure of any Client equipment or software or any losses resulting from such failure, Fornida shall not be responsible.

 

6.4. In no event shall either party be liable for any special, indirect, exemplary or consequential damages, or for lost revenue, loss of profits, savings, or other economic loss arising out of or in connection with this MSA, any Statement of Work(s) or any services performed or parts supplied hereunder, any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by delay in furnishing services under this MSA or any statement(s) of work even if such party has been advised of the possibility of such damages. Each party’s liability to the other for damages from any and all causes whatsoever and regardless of the form of action, whether in contract, tort or negligence, shall be limited to the amount of the damaged party’s actual direct damages not to exceed the amount of fees paid by Client to Fornida for the services during the two (2) months immediately prior to the date on which the cause of action accrued. It is understood and agreed that the cost of hardware or software (if any) provided to Client under this MSA shall not be included in the calculation of the limitation of damages described in the preceding sentence.

 

6.5. Fornida disclaims any express or implied warranty regarding the Services or Products or the installation of same and expressly disclaims any implied warranty, including any warranties of merchantability and/or fitness for a particular purpose. Fornida does not warrant that the Services or Products will function without failure, delay, interruption, error, degradation of quality or loss of content, data or information. Fornida does not authorize anyone, including but not limited to its employees, agents or representatives, to make a warranty of any kind on its behalf. The provisions of this section shall be applied to the fullest extent of the law, but if any portion of this section is determined to be unlawful, then this section shall be construed to limit liability against Fornida to the fullest extent possible under the law.

 

6.6. Fornida shall not have any obligation to provide credit for any interruption(s) of any Fornida Service.

 

6.7. The Client hereby represents and warrants that Fornida Services will not be used in any way or for any purpose in violation of the laws of any jurisdiction, including without limitation unsolicited, bulk commercial email.

 

 

7. LIMITATION OF LIABILITY

 

7.1. In no event shall Fornida be liable to Client, Client’s representatives or authorized assigns or to any third-party for any incidental, direct, indirect, special, punitive, exemplary, or consequential damages, or for any damages for loss of data, loss of revenue or profits, relating to or arising out of any Service as set forth within an applicable Service Agreement, SOW or TOS. Fornida’s liability for any act or omission shall in no circumstances exceed 1 month’s service charges. The limitations set forth herein shall apply to all claims founded in breach of contract, breach of warranty, product liability, tort, and any and all other theories of liability, and will apply whether or not Fornida was informed of the likelihood of any particular type of damage. Fornida shall not be held liable for any failure or delay in provision of the Services, including in contacting emergency services, nor for any interruption in Service or degradation of quality of Services for any reason. In the event of any delay, failure or outage of the Services, or the use or inability to use the Services, including but not limited to inability to dial emergency or police services, the inability to contact security, law enforcement, or fire prevention services, Fornida shall not be held liable in any way. Likewise, Fornida shall not be liable for any use of or inability to use any connected Device or Product, or for the installation of any Device. Fornida shall not be liable for unauthorized access to Fornida’s or Client’s transmission facilities or premises, equipment or for unauthorized access to, or alteration, theft or destruction of, Client’s data files, programs, procedures, or information through accident, fraudulent means or devices or any other method, regardless of whether such damage occurs as a result of Fornida’s negligence or other acts or omissions. The Client agrees to reimburse Fornida for all costs and expenses related to the defense of any such claims, including attorneys’ fees and litigation costs. The provisions of this section shall be applied to the fullest extent of the law, but if any portion of this section is determined to be unlawful, then this section shall be construed to limit liability against Fornida to the fullest extent possible under the law.

 

 

8. REMEDIES

 

8.1. Where Fornida has not met its obligations under an applicable Service Level Agreement (SLA), Client must notify Fornida within three (3) business days via written notice delivered by email to support@fornida.com, including a Customer Service Ticket number where applicable.

Upon receipt of such email Fornida shall have six (6) business days to acknowledge or to challenge the alleged SLA issue.

In the event Fornida fails to meet its SLA commitments as defined in the applicable TOS on three (3) separate occasions over the course of three (3) consecutive months, the Client shall have the right to terminate this MSA and the applicable Service Agreement for cause with a written notice delivered at least thirty (30) days prior to the date of termination, with no further liability to Fornida.

Such notice by the Client shall be delivered by email to support@fornida.com

 

8.2. Initialization Exception. Notwithstanding the above, the Parties acknowledge that there will be a period at the start of Services in which Fornida’s initial startup and transition activities hinder meeting standard expectations under SLA. As such the Parties agree that the first ninety (90) days of Service shall not be elidible to be counted toward SLA failures under Section 8.1 above. (the Initialization Exception”).

 

8.3 The remedies provided in this section 8 are intended to be Client’s sole remedy available to the Client in connection Fornida’s failure to meet any SLA obligations during the term of applicable Service Agreement. Any other potential remedies are excluded.

 

 

9. INDEMNIFICATION AND WAIVER OF CLAIMS

 

9.1. The Client shall be solely responsible for any and all use of the Services, Products and Devices whether approved or unapproved. The Client shall indemnify, defend and hold harmless Fornida against any and all liability for any use of Services, Products, or Devices which fails to comply with this MSA or any applicable TOS. Further, The Client shall indemnify, defend and hold harmless Fornida from any and all claims and/or liability for damages, personal injury, death, fines, penalties, costs, expenses, losses, lost profit, lost revenue, property damage, attorneys’ fees, and any and all other damages of whatever kind and nature relating to or arising out of the Service, the use of or inability to use the Service, the absence, failure or outage of the Service, the inability to dial or to access emergency service personnel, the inability to dial security, law enforcement or fire prevention services, the Device, the use of and/or inability to use the Device, the installation of the Device, and/or this Terms of Service unless the claims or causes of action arise from Fornida’s gross negligence, recklessness, or willful misconduct. This section shall survive the applicable Service Agreement or Terms of Service.

 

 

10. CONTENT

 

10.1. Client shall be solely responsible for content it transmits to any person, whether or not such transmission was authorized, utilizing the Services or Products. The Client hereby represents and warrants on behalf of itself and anyone who may use the Services that all content transmitted via the Service shall comply at all times with applicable laws and regulations, and Fornida’s instructions for usage of the Services.

 

 

11. INTELLECTUAL PROPERTY

 

11.1. Each party (a “Authoring Party”) owns and retains all intellectual property rights in and to all of the Authoring Party’s works of authorship, including but not limited to all plans, software or software modifications developed by the Authoring Party, and all modules derived or created from such materials (collectively, “Authoring Party’s IP”). The Authoring Party’s IP may not be distributed or sold in any form or manner without the express written consent of the Authoring Party. During the term of this MSA, the Client may use and modify any intellectual property provided to the Client by Fornida pursuant to this MSA, provided that such modification (i) does not negatively impact the security or integrity of any of Fornida’s equipment, or the integrity or implementation of the Services, (ii) does not result in or cause the infringement of any intellectual property rights of any third party, and (iii) does not require Client to reverse engineer Fornida’s intellectual property Each party’s limited right to use the other party’s intellectual property as described herein automatically terminates upon the termination of this MSA.

 

11.2. Any software used by Fornida to provide the Service and any software provided to Client in conjunction with providing the Service is protected by copyright law and international treaty provisions. Client is prohibited from copying such software or any portion of it.

 

11.3. All materials, services, logos, service marks, trademarks and website content of Fornida are owned solely by Fornida and are protected by applicable trademark, copyright, or other intellectual property laws, and international treaty provisions. The client shall not engage in any activity which infringes Fornida’s intellectual property rights.

 

11.4. Client hereby grants Fornida a license for the limited use of the Client’s logo on Fornida’s website and print promotional materials.

 

 

12. CONFIDENTIALITY

 

12.1. Definition. “Confidential Information” means any and all non-public information provided to one Party (Receiving Party) by the other party (Disclosing Party), including but not limited to business data, customer lists, internal documentation, and related information. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of the Receiving Party, (ii) was developed independently by the Receiving Party, or (iii) is or was lawfully and independently provided to the Receiving Party prior to disclosure by Disclosing Party, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

 

12.2. Use. A Receiving Party shall keep the Disclosing Party’s Confidential Information confidential, and shall not use or disclose suchinformation to any third party for any purpose except (i) as expressly authorized by the Disclosing Party in writing, or (ii) as needed to fulfill the Receiving Party’s obligations under this MSA. If the Receiving Party is required to disclose the Confidential Information to any third party, then Receiving Party shall ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section.

 

12.3. Due Care. A Receiving Party shall exercise the same degree of care with respect to the Confidential Information as that Receiving Party normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases shall be at least a commercially reasonable level of care.

 

12.4. Compelled Disclosure. If a Receiving Party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, the Receiving Party shall immediately notify the Disclosing Party in writing of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive Receiving Party’s compliance with the provisions of this Section. The Receiving Party will use its best efforts, at the Disclosing Party’s expense, to obtain or assist Disclosing Party in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Receiving Party may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Receiving Party has been advised by written opinion of legal counsel that Receiving Party is legally compelled to disclose.

 

 

13. OWNERSHIP OF SERVICES

 

13.1. Work or professional services performed and/or provided by Fornida shall remain at all times the sole property of Fornida, and shall not be “Work for Hire”.

 

13.2. Fornida grants to the Client a limited, non-transferrable, non-exclusive license to use the Services and the work product thereof for the duration of this MSA. Such license may be revoked by Fornida at his sole option where the Client is found for any reason to be in default of any obligation of the Client pursuant to this MSA, a SOW or an applicable TOS. If this MSA or other agreement by which the Client receives the Services is terminated for any reason, the Client’s license to use the work product shall be terminated immediately. The Client will not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software provided by Fornida.

 

13.3. This MSA, and any applicable SOW or TOS shall apply to all software that is provided to the Client by Fornida, including without limitation software that Fornida may authorize the Client to install on Devices located on the clients’ premises or elsewhere. After the expiration or termination for any reason of this MSA, any applicable SOW, TOW or any other applicable agreement, the Client shall not use any software so provided by Fornida.

 

13.4. The Client shall not reverse engineer, decompile or disassemble any software provided to the Client by Fornida except and to the extent that Client is expressly permitted by applicable law, or otherwise in writing by Fornida to do so, and in any case following at a minimum ten (10) days’ advance written notice to Fornida, unless permitted by the terms of an open-source software license.

 

13.5. To the greatest extent possible Client shall not mix software license ownership when utilizing Fornida services. In such cases, where the Client provides all licensed products, including the OS, all licenses must be provided by the Client and may not be mixed with Fornida licensed products. Requirements vary by software vendor.

 

 

14. MANAGEMENT OF YOUR SYSTEMS AND DATA

 

14.1. System Management. The Client shall be solely responsible for obtaining, installing, configuring, and maintaining appropriate equipment and infrastructure to facilitate the Services, including but not limited to firewall, switches, servers, computers, and software, unless stated otherwise in applicable agreements. The Client maintains responsibility for system management and performance, including any necessary system or software upgrades, patches, or other fixes which are or may become necessary to access the Service and to operate the Client’s computer systems.

 

14.2. Monitoring of Network Performance. Fornida is expressly granted the right to monitor and record network performance, and to access and record information about the Client computer’s profile, and settings. Fornida is authorized to continuously monitor the installation of Fornida Software in order to facilitate the Services and to provide technical support customized to the Client device. Fornida will not make changes to Client computer system or settings without permission from the Client. No adjustments to your computer settings will be made without your permission. The Client consents to Fornida’s monitoring of the Client’s Internet connection and network performance, and the access to your computer settings, as provided herein, as they relate to the Service.

 

 

15. EXPORTS

 

15.1 Client represents and warrants without limitation:15.1.1. That the Client will comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security.

 

15.1.2. Client shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service or Device, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.

 

15.1.3. That Client is not located in or a national of any country that is embargoed or restricted under export regulations or are otherwise a person or entity to which Fornida is legally prohibited from providing the Services.

 

15.1.4. Client will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any Information or technical data provided by Fornida under this MSA, or any applicable SOW or TOS or other agreement in which they are incorporated in any manner which would cause Fornida to breach any applicable export control laws, rules, or regulations.

 

15.1.5. Client represents, and warrants, that it will not provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations.

 

 

16. PRIVACY

 

16.1. Personally identifiable information provided by the Client to Fornida will be used only in the course of Fornida providing the Services to the Client, and will not be sold, rented, leased, or transferred to any other party for any reason, except at the request of a government or law enforcement agency, court, or as required by law.

 

16.2 The Services provided by Fornida use publicly available internet resources and accessible third-party networks to transmit voice and other communications online. The Client hereby acknowledges that there is no guarantee that Voice-over-IP (VoIP) communication is secure and Client agrees that Fornida is authorized to access all necessary features of the Client’s account and the Services to evaluate whether the Client’s use of the Services are compliant with the Client’s obligations under this MSA and any applicable TOS, including but not limited to whether the Services is being utilized in any fraudulent manner, or for any unapproved purpose. In this regard, the Client agrees that Fornida shall be held liable for any alleged breach of privacy.

 

16.3. By using the Service, the Client hereby agrees and consents to Fornida’s right to monitor and otherwise disclose the nature and content of your communications if and as required by Communications Assistance for Law Enforcement Act (“CALEA”), without any further notice to you.

 

 

17. FORCE MAJEURE

 

17.1. Fornida shall not be liable in any way for any delay or failure in performance hereunder or under any SOW, TOS, or SLA resulting from the occurrence of events beyond its reasonable control; including without limitation, acts of God, public health crisis, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers, Internet Service outage, power outages or other difficulties as may occur.

 

 

18. NON-SOLICITATION

 

18.1. During the term of this MSA and any applicable SOW, TOW or other agreement, and for a period of one (1) year following the termination of such agreements, the Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Fornida’s employees or subcontractors to discontinue or reduce the scope of their employment and/or business relationship with Fornida, or recruit, solicit or otherwise influence any employee or agent of Fornida to discontinue such employment or agency relationship with Fornida. In the event that Client violates the terms of the restrictive covenants in this Section, the Parties acknowledge and agree that the damages to Fornida would be difficult or impracticable to determine, and agree that in such event, as Fornida’s sole and exclusive remedy therefore, Client shall pay Fornida as liquidated damages and not as a penalty, an amount equal to sixty percent (60%) of that employee or subcontractor’s then current annual salary/compensation with Fornida (including any signing, relocation, or any other types of bonuses, commissions, stipends, etc).

 

 

19. INSURANCE

 

19.1. The Client and Fornida shall separately maintain all insurance as may be reasonably required in connection with this MSA or any applicable SOW, including, without limitation, general liability insurance and worker’s compensation insurance. In addition, Fornida will maintain general liability insurance coverage with a limit greater than one million USD. The Client will separately maintain data protection and business continuity insurance. Each party shall be solely responsible for payment for its own insurance as provided herein.

 

 

20. AGREEMENT TO ARBITRATE. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. PLEASE READ THIS SECTION CAREFULLY.

 

20.1. Arbitration. Any and all disputes and claims of any kind or nature, including, but not limited to disputes and claims arising out of or relating to any aspect of the relationship between Client and Fornida, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior Terms of Service (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this Terms of Service; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision, which arise between Client and Fornida, except with respect to claims for amounts owed for services rendered shall be finally resolved by Arbitration as provided in this section.

References to “Client” and “Fornida”, include each party’s respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this MSA or any applicable SOW or TOS.

 

20.2. Mandatory Dispute Resolution Procedure. In the event of any dispute or claim, the Client is required to firstly notify Fornida of the Client’s claim in a writing which clearly describes the facts of the dispute or claim, and includes your analysis of the facts and applicable contractual provisions, along with supporting evidence, along with a request for the specific action you are requesting from Fornida to resolve the dispute. Upon submission of such notification, Fornida will have not less than twenty (20) business days to review your claim and to provide a response. In the event the Client is not satisfied with the resolution provided by Fornida, the Client may send a Notice of Dispute as provided below. This paragraph shall not apply to arbitration proceeds initiated by Fornida.

 

20.3. Formal Notice of Disputes. Prior to commencement of an arbitration proceeding, the complaining party must submit a “Notice of Dispute” to the other party. The Notice of Dispute must describe the dispute or claim with detail and specificity, must describe the legal/and or contractual basis of the dispute, must provide necessary supporting documentation, and must state the specific relief sought. If the Parties do not resolve the dispute after at least thirty (30) business days from the date of the Notice of Dispute is received, either party my proceed to initiate an arbitration proceeding.

 

All discussions between the Parties regarding a potential settlement of the dispute, including, without limitation any discussion of settlement, or settlement offer made by either party shall be confidential to the Parties, shall not be disclosed to the arbitrator and shall not be discoverable. Any party violating this provision shall be liable to the other for damages.

The Notice of Dispute to Fornida must be sent to Fornida, Attention “General Counsel,” by certified mail addressed to 2609 Technology Drive, Suite 300, Plano, TX 75074.

 

20.4. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”), and heard and decided by a single arbitrator appointed by the AAA.

 

20.5. Waiver of Jury Trial. The Client understands and agrees to waive any right to a jury trial.

 

20.6. Waiver of Class Actions. The Parties agree that by entering into this Agreement, each waives any right to participate in any potential class action or representative proceeding. The Parties also agree that the arbitrator shall not merge claims of multiple parties into a single proceeding and shall not otherwise preside over any form of representative or class action proceeding. The Parties agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.

 

20.7. Statute of Limitations. Each party must present a claim as provided herein within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute, or waive the right to pursue a claim based upon such event.

 

20.8. Exceptions to Arbitration. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, the Parties agree that with respect to claims for unpaid invoices: (i) Fornida may take such dispute to small claims court, if the contained dispute qualifies for hearing by such court; (ii) if the Client fails to timely pay amounts due, Fornida may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law; (iii) either party may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; and (iv) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction.

 

20.9. Modification of Arbitration. In the event Fornida publishes any substantive change to this arbitration provision, the Client has the right to reject any such change and to require Fornida to adhere to the original language in this provision as signed.

 

20.10. Venue/Jurisdiction. All claims for Arbitration or any other disputes related to this Master Services Agreement, any Terms of Service, or Statement of Work shall be submitted to and heard by the office of AAA. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in the City of Plano, Collin County, State of Texas.

 

 

21. MISCELLANEOUS

 

21.1. Assignment. Fornida is expressly permitted to assign any of its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale all of the assets of the business of a party, or any other transaction in which ownership of more than fifty percent (50%) of either party’s voting securities is transferred; provided such assignee expressly assumes the assignor’s obligations hereunder.

 

21.2. Survival. The provisions of this MSA and any related TOS relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and the Client’s obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Terms of Service and the termination of the Service.

 

21.3. Amendment. Fornida may amend the terms and conditions of this Master Services Agreement or any Terms of Service (including, without limitation, any of the policies incorporated by reference). Notice of revisions to these documents shall be posted to the legal section of the Fornida Website (“the Website”) athttps://www.fornida.net/content/termsand deemed given and effective on the date posted to the Website.

 

21.4. Severability. If any provision hereof or any SOW or TOS or other applicable agreement is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this MSA or any SOW or TOS or other applicable agreement shall be valid and enforceable to the fullest extent permitted by applicable law.

 

21.5. Other Terms. Fornida shall not be bound by any terms or conditions printed upon or written on any purchase order, invoice, memorandum, or other written communication between the Parties unless such terms or conditions are incorporated into a duly executed Statement of Work.

 

21.6. No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this MSA, the temporary or recurring waiver of any term or condition of this MSA, or the granting of an extension of the time for performance, shall not constitute a waiver of such terms with respect to any other occurrences. Fornida reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by Fornida under this Terms of Service and exercise of its rights are made and done in our sole and absolute discretion.

 

21.7. Merger and Entire Agreement. This MSA, together with any Service Agreement, TOS or SOW(s), sets forth the entire understanding of the Parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this MSA, our Terms of Service or Statement of Work shall act only to provide illustrations or descriptions of Services that may be provided, and shall not act to modify this MSA or provide binding contractual language between the Parties. Fornida shall not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.

 

21.8. No Third-Party Beneficiaries. The Parties have entered into this MSA solely for their own benefit. They intend no third party to be able to rely upon or enforce this MSA or any part of this MSA.

 

21.9. Usage in Trade. It is understood and agreed that no usage of trade or other method of dealing between the Parties to this MSA shall be used to modify, interpret, supplement, or alter in any manner the terms of this MSA.

 

21.10. Business Day. Unless otherwise directly specified, any time period set forth in this MSA, a Terms of Service, or a Statement of Work, that expires on a day other than a business day in Plano, Texas, shall be extended to and through the next succeeding business day in Plano, Texas.

 

21.11. Notices. Where notice is required to be provided to a party under this MSA, such notice shall be deemed delivered upon receipt by the receiving party, or refusal of delivery, when deposited in the United States Mail, first class mail, certified or return receipt requested, or one (1) day following delivery when sent by any non-USPS courier or parcel service to the Client addresses set forth in this MSA, or to such other address(es) as the Parties may designate in writing from time to time.

 

21.12. Subcontractors. Fornida may subcontract part or all of the Services to one or more third Parties provided, however that Fornida shall be responsible for, and shall guarantee, all work performed by any Fornida-designated subcontractor as if Fornida performed such work itself. Notwithstanding the foregoing, Fornida shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Client on a Statement of Work.

 

21.13. Counterparts. The Parties may execute and deliver this MSA and any Statement of Work in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement. Each party acknowledges and agrees that this MSA is intended to be executed and transmitted to the other party via electronic means. Accordingly, a party may execute and deliver this MSA (or any Statement of Work) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party shall be entitled to rely upon the apparent integrity and authenticity of such signature for all purposes.