Moebius Technology Solutions, Inc
General Terms of Service
Moebius Technology Solutions, Inc. (“Moebius”) provides professional technology services and support (collectively, “Services”) to clients or users (“Client” “You” or “Your”) subject to these terms and conditions (“Terms”). Such Services are set forth in support plans described or summarized in a Service Agreement or Service Plan (collectively “Service Agreement”) which shall be governed by these Terms. In the event of a substantial and material conflict between these Terms and a Service Agreement, the Service Agreement shall prevail.
Please read these Terms carefully before using the Services. By using the Services, or accepting any Service Agreement, you agree to be legally bound by these Terms and all terms, policies and guidelines incorporated by reference in these Terms or any Service Agreement.
Moebius reserves the right to change or modify any of the terms and conditions contained in these Terms, or any policy or guideline applicable to the Services, at any time and in its sole discretion. Unless otherwise specified, any changes or modifications will be effective immediately upon notice to you. Client’s continued use of the Services after such changes or modifications will constitute acceptance of such changes or modifications. You should regularly review the Terms and any policies and documents incorporated in them to understand the Terms.
SCOPE OF WORK
Moebius’s Service Agreements include summary descriptions of the available Services. The specific scope of work and associated pricing for Services will be based on the scope of Services agreed upon by Client and reflected in one or more Invoice(s).
TERM AND TERMINATION
Unless otherwise stated in a Service Agreement for a Fixed Term (defined below), Services shall continue until terminated.
Termination for Breach
If Client fails to pay any applicable fees due, Moebius may (a) suspend Services immediately; or (b) terminate Services if such fees remain unpaid for 30 days after receipt of notice from Moebius of non-payment. Moebius may also terminate or suspend Services if Customer commits any other material breach of these Terms or a Service Agreement and fails to cure such breach within fifteen (15) days. Customer may terminate a Service Agreement if Moebius commits any material breach of the Service Agreement and fails to cure such breach within thirty (30) days after written notice to Moebius.
Termination for Convenience.
Moebius or Client may terminate Services or any Service Agreement for any reason upon thirty days (30) written notice. In the event of termination for convenience by Client of a Service Agreement for a fixed term of greater than six (6) months, including but not limited to any initial or successive terms (“Fixed Term”), the Client shall pay all fees remaining on the Fixed Term pursuant to the Service Agreement. Client acknowledges and agrees that Moebius will invest considerable time, effort and resources in evaluating the Client’s IT network and needs and setting up the systems and procedures necessary to perform and provide the Services during such Fixed Term and that such investment will be amortized and recouped by Moebius over the course of the Fixed Term. Moebius would be damaged if the Client terminated without cause prior to the expiration Fixed Term and the amount of such damages would be uncertain and difficult to quantify. Accordingly, Client agrees that payment of the remaining fees due on any such Fixed Term is fair and equitable.
Effect of Termination
Upon termination, neither party shall have any further liability or obligation to the other hereunder, except that each party shall remain liable to the other with respect to any liability arising prior to such termination including any outstanding invoices or balances. Client shall settle all outstanding invoices or balances within thirty (30) days of termination. Upon termination, Client shall cease all use of the Services. In addition, Client shall return any hardware or equipment owned by Moebius and in Client’s possession pursuant to any Services or Service Agreement.
PAYMENT
Unless otherwise stated, all merchandise, hardware and software must be paid for in full and at the time of order and invoice. All payments must be made in U.S. dollars and are due as stated in an Invoice. Your outstanding balance is due in full each payment period. Client accounts must be paid by the due date to avoid a late fee and interest. Moebius may, in its discretion, accept partial payments, which will be applied to the oldest outstanding charges on your account. If you are delinquent in any payment, Moebius reserves the right to suspend or terminate or deactivate all Services and report any late payment or non-payment to credit reporting agencies. Interest on unpaid amounts will accumulate at 1% per month. In addition to interest, Client shall pay all costs, fees, and expenses of collection by Moebius including attorney’s fees, marshal fees, and court costs.
Billing Statements
Billing statements will be provided upon request. If you would like to receive a statement for a particular period, please contact us. Please include the name and service address on your account. Statements will show: (1) payments, credits, purchases and any other charges to your account, (2) your account balance, and (3) the payment due date.
Service Credits
Service credits will not be refunded in cash, but will be honored in the form of Services for the remaining length of the credit. Unused service credits will expire upon termination of the Service Agreement may not be transferred or otherwise assigned. Service credits may not be used as credit on any fees associated with the termination of the Service Agreement.
TRANSITION SERVICES
In the event of termination, Moebius will provide reasonable cooperation at its hourly rates on a time and material basis to transition Client to a new service provider. Transition services are only available if outstanding invoices are paid in full, and the estimated amount of time for transition services is paid in advance.
Client Responsibilities
Client agrees to cooperate with Moebius in order to allow Moebius to fulfill its obligations under the Service Agreement.
Client agrees to implement recommended IT security and system policies to prevent or minimize the impact of adverse IT events.
Client also agrees to discuss with Moebius any anticipated technology or business process changes, in advance, to allow Moebius to proactively plan and manage the system changes. Examples of changes are: software selection and installation, Internet service providers, WAN, cabling, telephone systems, new business methods, etc.
Client agrees that Client shall not, copy, decompile, disassemble, reverse engineer or manipulate any technology incorporated in, or otherwise modify or tamper with, any equipment owned by Moebius.
Client agrees to notify Moebius of any change in Client’s name, address, service address, email address, contact information, authorized representative(s), telephone number, payment information or other account information.
Client should utilize staff that may be trained with the proper technology background where appropriate. Moebius will not be held responsible for the length of training required by Client for its employees.
Client grants Moebius permission to access Clients’ account, login credentials, and other information as necessary to perform Services or troubleshooting on its account.
In its use of the Services, Client shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Data. Client further represents and warrants that it will not use the Services: (i) in a manner that infringes, violates or misappropriates any rights of Moebius or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN SPAM Act; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.
LIMITED WARRANTY
Moebius warrants that all Services will be performed in a professional and workman like manner in accordance with general industry standards.
THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER EXPRESSED AND IMPLIED WARRANTIES. NO OTHER WARRANTIES APPLY, WHETHER VERBAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN THIS LIMITED WARRANTY, ALL SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WHERE IS” AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES. MOEBIUS FURTHER DOES NOT WARRANT THAT THE SERVICES, SERVICE DELIVERABLES, OR ANY THIRD-PARTY PRODUCTS ARE ERROR-FREE, OR WILL OPERATE IN AN UNINTERRUPTED MANNER OR IN COMBINATION WITH OTHER SOFTWARE PRODUCTS. THERE IS NO WARRANTY FOR THIRD PARTY SOFTWARE OR THIRD-PARTY HARDWARE RECOMMENDED BY MOEBIUS AND EACH SUCH THIRD-PARTY SOFTWARE OR THIRD-PARTY HARDWARE SHALL BE GOVERNED BY THE WARRANTIES OFFERED BY THE APPLICABLE THIRD PARTY UNDER THE TERMS OF THE AGREEMENT BETWEEN CLIENT AND SUCH THIRD PARTY. IN ADDITION, AND WITHOUT LIMITATION, MOEBIUS DOES NOT WARRANT OR REPRESENT THAT ANY THIRD-PARTY SOFTWARE OR THIRD-PARTY HARDWARE AS DELIVERED WILL MEET ALL OF CLIENT’S BUSINESS REQUIREMENTS WITHOUT THE NEED FOR CONFIGURATION OR ENHANCEMENTS OR ENCOMPASS ALL OF THE FUNCTIONALITY DESIRABLE BY CLIENT OR AVAILABLE IN CLIENT’S LEGACY SOFTWARE OR HARDWARE.
ACCEPTANCE
Client must report any deficiencies in Services to Moebius in writing within ten (10) business days of performance of such Services in order to receive warranty remedies otherwise the Services shall be deemed accepted.
WARRANTY REMEDY
FOR ANY BREACH OF THE WARRANTY, CLIENT’S EXCLUSIVE REMEDY, AND MOEBIUS’S ENTIRE LIABILITY, SHALL BE LIMITED TO THE RE-PERFORMANCE OF THE SERVICES. IF MOEBIUS IS UNABLE TO RE-PERFORM THE SERVICES AS WARRANTED, CLIENT SHALL BE ENTITLED TO RECOVER THE FEES PAID TO MOEBIUS FOR ONLY THE DEFICIENT SERVICES.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATING TO LOST PROFITS, LOSS OF DATA OR LOSS OF BUSINESS OPPORTUNITY) EVEN IF THE PARTY CLAIMING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ANY RECOVERY OF DAMAGES, REGARDLESS OF THE THEORY ALLEGED, AGAINST MOEBIUS EXCEED THE AGGREGATE AMOUNTS PAID TO MOEBIUS BY CLIENT OVER THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. CLIENT ACKNOWLEDGES THAT THE LIMITATION OF LIABILITIES AND DISCLAIMERS OF WARRANTIES CONTAINED HEREIN CONSTITUTE AN AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES, HAVE BEEN FACTORED INTO PRICING OF THE SERVICES, AND ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES.
CLIENT AGREES THAT ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES IS AT CLIENT’S OWN RISK. YOU WILL NOT HOLD MOEBIUS OR OUR CONTRACTORS, LICENSEES OR LICENSORS, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGE RESULTING FROM CLIENT’S ACCESS TO OR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO ANY OF CLIENT’S DEVICES, EQUIPMENT OR DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY OR GUARANTEE IN ANY WAY WHATSOEVER RELATING TO THE SERVICE OR ANY WEBSITE.
THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. MOEBIUS LICENSORS, AGENTS AND CONTRACTORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS.
INDEMNIFICATION
Client agrees to indemnify, defend and hold harmless Moebius and its subsidiaries and affiliated companies, third-party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “Indemnified Party” and, collectively, “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third-party against any of the Indemnified Parties arising out of or relating to (i) Client’s use of the Services; (ii) any violation by Client of any of Moebius’s policies; and/or (iii) any negligent acts or omissions by Client. For the purpose of Client’s indemnification obligation hereunder, the term “Client” shall include any of Client’s end users, visitors to Client’s website, and users of Client’s products or services, the use of which is facilitated by Moebius.
LIMITATION OF ACTIONS
NO ACTION, SUIT, OR PROCEEDING, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR ANY SERVICE AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN TWO (2) YEARS AFTER THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
CHANGES TO SCOPE
Any changes to the scope of Services under a Service Agreement shall be made only in a writing signed by an authorized representative of each party prior to implementation of such changes, or in accordance with any Service Agreement.
DATA & DATA SECURITY
Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material submitted by Client to Moebius. Although Moebius takes measures to maintain the safety and security of your data when applicable, please note that no transmission over the Internet or system capable of access through the Internet are guaranteed to be secure. Moebius cannot fully guarantee the security of any data that you transfer over the Internet to us and we cannot guarantee that unauthorized access, hacking, data loss, or other breaches will never occur in your systems or ours. Client understands and agrees that data loss or network failures may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure the Client must maintain proper security for its computer and information system including software and hardware updates. Client will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth and recommended by Moebius where applicable. Unless otherwise specified in a Service Agreement, it is not the intent, nor does Moebius provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for the Client.
Third-Party Products
Equipment Warranty
Equipment warranties (where applicable) are provided by the manufacturer, not by Moebius. In accordance with a Service Agreement and pursuant of the Terms, Moebius will make commercially reasonable efforts to resolve issues arising from defective equipment or improper installation during the initial install period (generally considered to be 60 days from the installation of said equipment).
Unless otherwise stated in an Invoice, all hardware, software, peripherals or accessories
purchased through Moebius (“Third Party Products”) are nonrefundable once the applicable purchase order is placed in our queue for delivery. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you.
EULA
Portions of the Services may require you to accept the terms of one or more third party end user license
agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to you, then you hereby grant us permission to accept the EULA on your behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. You agree to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, we are required to comply with a third-party EULA and the third party EULA is modified or amended, we reserve the right to modify or amend any applicable SOW with you to ensure our continued compliance with the terms of the third party EULA.
If Moebius is required to install or replicate software as part of the Services, Client will independently verify that all such software is properly licensed. Customer’s act of providing any software to Moebius will be deemed Client’s affirmative acknowledgement that Client has a valid license that permits Moebius to perform the Services related thereto. In addition, Customer will retain the duty and obligation to monitor Client’s equipment for the installation of unlicensed software unless Moebius expressly agrees to conduct such monitoring in a Service Agreement or Invoice.
INTELLECTUAL PROPERTY
Moebius and Client shall retain all Intellectual Property rights respectively owned by them prior to providing Services (even if used in connection with performing Services). Moebius will retain exclusive ownership of all its know-how, concepts, techniques, methodologies, ideas, templates, routines, sequences, software, firmware, designs, scripts, interfaces, programming code, applets, executables, objects, files, utilities and tools that existed prior to the performance of Services or used in conjunction with the performance of Services unless otherwise agreed in a Service Agreement. Subject to these Terms, Moebius hereby grants to Client a non-exclusive, non-sublicensable, non-transferable license to use the Services and any applicable documentation or work product during solely for Client’s internal business purposes in connection with its use of the Services. Moebius reserves all rights not expressly granted to Client hereunder. During the performance of Services, Client grants Moebius a non-exclusive license to use, reproduce and modify any pre-existing materials owned or licensed by Client solely for the performance of providing Services.
In addition, all programming, processes, and other services supplied (Content) are either owned by Moebius or are the property of our licensors and suppliers. Neither your access to and use of the Services nor these Terms grant you any right, title or interest or license in or to any such Content, and you may not use such Content without the express written permission of Moebius and/or the copyright owner(s). Trademarks, service marks, graphics, logos and domain names (“Marks”) associated with the Services may be the trademarks of third parties. Neither your access to and use of the Service nor these Terms grant you any right, title or interest or license to reproduce or otherwise use the Marks or any third-party trademarks, service marks, graphics, logos or domain names. You shall not at any time, nor shall you assist others to, challenge our right, title, or interest in or to, or the validity of, the Marks or any other intellectual property rights.
RELATIONSHIP OF THE PARTIES
Neither these Terms nor any Service Agreement, will be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise. Each party agrees to perform under these Terms or any Service Agreement solely as an independent contractor and shall not hold itself out as an employee or agent of the other party in any sense. No party shall have authority to act for or obligate the other party in any way or to make any representation or warranty on behalf of the other party.
NO SOLICITATION
Client will not solicit, offer, or accept employment or services from anyone that Moebius uses for the provision of Services to Client whether the person be an employee, consultant, independent contractor, or in any other capacity. This restriction shall apply for a period of two years from the last date of Services.
SEVERABILITY
If any one or more of the provisions contained herein shall for any reason be held to be unenforceable in any respect, such unenforceability shall not affect any other provision of these Terms, but these Terms shall then be construed as if such unenforceable provision or provisions had never been contained herein.
SURVIVAL
All Terms herein which should by their nature survive the termination of this or any Service Agreement shall so survive.
NO PRESUMPTION
The parties hereby acknowledge that these Terms or any Service Agreement is the product of negotiation between the parties and that the identity of the party who prepared these Terms or any Service Agreement shall in no way create a presumption that these Terms or any Service Agreement and the language hereof is to be construed against such party.
FORCE MAJEURE
Neither party shall be liable in damages or have the right to terminate these Terms or any Service 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 of other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, or communications failure).
NO WAIVER
A waiver of a breach or default under these Terms or any Service Agreement shall not be a waiver of any subsequent breach or default hereunder. Failure of either party to enforce compliance with any of these Terms or any term or condition of a Service Agreement shall not constitute a waiver of these Terms or any such term or condition.
ENTIRE AGREEMENT
These Terms together with all Service Agreements and other attachments and Invoices thereto, if any, constitutes the entire agreement between the parties and supersedes any prior or contemporaneous oral or written representations with regard to the subject matter thereof. These Terms may not be amended, modified or superseded except by a writing signed by both parties. No salesperson or other representative is authorized to change these Terms for you verbally. Any specific Terms that expressly or by their nature survive termination shall continue thereafter until fully performed.
DISPUTES & RESOLUTION
Any dispute regarding an Invoice or any part thereof must be brought, in writing to Moebius within ten (10) days of the date of the invoice setting out the reasons for the dispute and the exact amount disputed. After ten (10) days, Invoices are deemed approved, no longer subject to dispute, and are due in full. The parties agree to make reasonable efforts to resolve any other disputes arising from the Services prior to pursuing litigation. Such efforts shall include the escalation of the dispute to a senior manager of each party who has full authority to resolve the dispute on behalf of the party.
ENFORCEMENT
In any action at law or in equity by or against Moebius to enforce or defend any of the provisions of these Terms or any Service Agreement, if Moebius is the successful party in such litigation, Client shall pay all costs, expenses and attorneys’ fees incurred by Moebius (including, without limitation, all costs, expenses and fees related to any appeals), and such costs, expenses and attorney’s fees shall be included as part of any judgment. Disputes brought by you under these Terms, or otherwise, may not be joined or consolidated with disputes brought by or against any third party, unless agreed to in writing by all parties.
EQUITABLE RELIEF
The parties hereto acknowledge and agree that each would be irreparably damaged in the event that any of the provisions of these Terms or any Service Agreement were not performed by the other in accordance with its specific terms or were otherwise breached. Accordingly, it is agreed that each party shall be entitled to an injunction or injunctions to prevent breaches of these Terms or any Service Agreement by the other and shall have the right to specifically enforce these Terms or any Service Agreement and the terms and provisions hereof against the other in addition to any other remedy to which such aggrieved party may be entitled at law or in equity.
JURISDICTION AND VENUE
All questions concerning the validity, interpretation and performance of these Terms or any Service Agreement shall be governed by and decided in accordance with the Laws of the State of Connecticut, without regard to any conflicts of laws and principles thereof. The parties hereby submit and consent to the exclusive jurisdiction of Middletown Superior Court located within Connecticut, and agree that all actions or proceedings relating to these Terms or any Service Agreement shall be litigated in such court, and each of the parties waives any objection which it may have based on improper venue, lack of personal jurisdiction or forum non conveniens to the conduct of any such action or proceeding in such court.
ASSIGNMENT
These Terms or any Service Agreement, and any right or interest hereunder, may be assigned in whole or in part by Moebius. Client’s rights or interest hereunder, may be assigned in whole or in part only with the prior written consent of Moebius, which written consent shall not be unreasonably withheld.
SUCCESSORS AND ASSIGNS
These Terms and any Service Agreement shall be binding upon and shall inure to the benefit of the parties hereto and, to the extent permitted hereby, their legal representatives, heirs, successors and assigns.
COUNTERPARTS & ELECTRONIC SIGNATURES
Any Service Agreement subject to these Terms may be executed in separate counterparts, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument. Client’s electronic signature on any Service Agreement shall have the same validity and effect as a signature affixed by the Client’s hand.
Notices
Notices to you will be deemed given when deposited in the mail or when sent by email. Notices may be included in statements or other communications to you. We may also provide notice to you by telephone, which will be deemed given when a message is left with you, someone answering the telephone at your residence or on an answering machine or voice mail system at your phone number on record with us. Notices to Moebius will be deemed given when such written notice is received by Moebius’ authorized representative.
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