Terms and conditions applicable to client’s use of FRIKINTech services
- Agreement. The FrikinTech Services proposal provided by FrikinTech, Inc. (“FrikinTech”) to the client identified on such proposal (“Client”), these Terms and Conditions, Client’s credit card authorization form, and the invoice(s) sent to Client by FrikinTech collectively constitute the entire binding agreement (the “Agreement”) by and between Client and FrikinTech (hereinafter, collectively, the “Parties”) relating to Client’s license, access, and use of the FrikinTech software services set forth on Client’s proposal (such FrikinTech software services, hereinafter, the “Services”). This Agreement supersedes all other agreements and understandings, whether written or oral, between the Parties relating to the license of the Services. Notwithstanding anything to the contrary, Client agrees to be bound by and accept the terms and conditions contained in this Agreement. No additions, conditions, amendments, alterations, or modifications by Client or any other person, whether oral or contained in any other documents submitted from Client to FrikinTech will be binding on FrikinTech, regardless of FrikinTech’s failure to object or FrikinTech’s provision of Services, unless otherwise agreed to in writing and signed by FrikinTech. These terms and conditions may be updated or amended from time to time by FrikinTech without notice to Client; a copy of such updated terms will be available for Client’s review at http://frikintech.com/terms-and-conditions. Client agrees to be bound by the most recent Terms and Conditions. THIS AGREEMENT WILL APPLY UNLESS CLIENT HAS A SEPARATE WRITTEN AGREEMENT WITH FRIKINTECH THAT EXPRESSLY REPLACES THIS AGREEMENT.
2. Fees; Payment; Taxes.
(a) Client hereby agrees to pay the Fees (comprised of the monthly fees and the upfront implementation fees) in the amounts set forth in the Proposal for the Term of the Proposal (the “Fees”). Except as otherwise expressly set forth herein, the Fees are based on the particular Services licensed, Client’s payment obligations are noncancelable, and no portion of the Fees is non-refundable.
(b) Client’s applicable upfront implementation fees will be billed upon FrikinTech’s receipt of the signed Proposal from Client and a credit card authorization form (which can be found at https://frikintech.com/support/credit-card-authorization/). Client’s applicable monthly recurring fees will be billed on the first of each month for that month’s Services (or portion thereof). If a credit card authorization is on file Fees will be charged automatically when due, and Client hereby grants FrikinTech permission to charge Client’s provided credit card accordingly. If Client requests and if FrikinTech agrees to another form of payment, Fees will be due upon Client’s receipt of the invoice. Client is responsible for providing complete and accurate billing and contact information to FrikinTech and notifying FrikinTech of any changes to such information.
(c) If Client fails to make applicable Fee payments when due, then in addition to FrikinTech’s other rights and remedies, FrikinTech will have the right, at its sole discretion to: (i) suspend the Services pending Client’s full payment of any outstanding fees, and/or (ii) immediately terminate the Agreement, upon which termination all outstanding Fees will be immediately due and payable. Unpaid amounts shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount chargeable by law, commencing thirty (30) days from when the payment was due and continuing until fully paid. Nothing contained herein will release Client from any previous obligations. Client will be liable to FrikinTech for all costs incurred by FrikinTech in its collection of any amounts owing by Client which are not paid when due, including collection agencies’ and attorneys’ fees and expenses, regardless of whether a lawsuit is commenced.
(d) Unless otherwise stated, the Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction. Client is responsible for paying all applicable taxes under this or any Agreement with FrikinTech.
3. Services. Subject to the terms of this Agreement, including, but not limited to, Client’s fulfillment of its payment and other obligations as set forth herein, FrikinTech: (i) grants Client the right to use the Services in accordance with the documentation during the Term; (ii) will make the Services available to Client through remote access over the Internet; (iii) will provide FrikinTech’s standard email and telephone support for the Services to Client during normal business hours Eastern Standard Time at no additional charge; and (iv) will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (x) planned downtime (of which FrikinTech will give electronic notice), (y) any unavailability caused by circumstances beyond FrikinTech’s reasonable control, including, without limitation, actions by Client that may impede access to or function of the Services, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or other labor problems, internet or other hosted service disruptions involving hardware, software, or power systems, and denial of hosted service attacks, and (z) any unavailability caused by our suspension or termination of the Services pursuant to the terms of this Agreement.
4. Client’s Use of Services. (a) Client is solely responsible for Client’s and Client’s users’ use of the Services and compliance with this Agreement, and for providing those computer and other resources necessary to enable Client’s users to utilize the Services. Client will use commercially reasonable efforts to prevent unauthorized access to or use of Services, and Client will notify FrikinTech promptly of any such unauthorized access or use. Client will use the Services only for the purposes provided by FrikinTech and otherwise in accordance with applicable laws and regulations.
(b) Client represents, warrants, and covenants that Client will not engage in any of the following activities: (i) making the Services available to, or using the Services for the benefit of, anyone other than Client; (ii) selling, reselling, licensing, sublicensing, distributing, renting or leasing the Services; (iii) using the Services for any unlawful purpose; (iv) using the Services in violation of any third-party privacy rights; (v) interfering with or disrupting the integrity or performance of the Services or third-party data contained therein; (vi) attempting to gain unauthorized access to the Services or its related systems or networks; (vii) reverse engineering, reverse compiling, copying, translating, modifying or creating derivative works of the Services or any part, feature, function or user interface thereof; or (viii) using the Services in any way not expressly permitted under this Agreement.
(c) Client will create and maintain accurate records of all activities and events related to the Services to the extent necessary to ensure Client’s compliance with the terms of this Agreement (including, but not limited to, all Client users). Such records must be clear and readily available to FrikinTech upon FrikinTech’s written request.
5. Term and Termination. (a) The term of this Agreement (the “Term”) will begin on the Effective Date outlined in the Proposal and continue on a month-to-month basis or as set forth on the Proposal. Unless otherwise expressly stated in the Proposal, either Party may terminate this Agreement for its convenience upon thirty (30) days’ prior written notice to the other Party.
(b) Either Party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately upon written notice to the other Party of a material breach that is incapable of cure; or (iii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(c) Upon termination, Client’s access to the Services will terminate and Client shall immediately discontinue all use. Section 1; Section 2 (as to any outstanding Fees); Section 4(b); Section 5; Section 6(a); Sections 7 through 12; Sections 14 through 20; and all defined terms herein shall survive any termination hereof. FrikinTech will not refund any portion of the Fees for the current billing period if Client terminates the Agreement for convenience under Section 3(b), or if FrikinTech terminates the Agreement for cause under Section 3(c); however, Client will not be billed for any subsequent months following termination. If Client terminates the Agreement for demonstrated cause or if FrikinTech terminates the Agreement for convenience, FrikinTech will refund a pro-rated portion of the Fees paid for the current billing period.
(b) FrikinTech hereby represents, warrants, and covenants that: (i) the Services will perform materially in accordance with the applicable documentation; and (ii) FrikinTech will not materially decrease the functionality of the Services during the Term. For any material breach of an above warranty, FrikinTech will use commercially reasonable efforts to cause the Services to function in accordance with the applicable documentation and/or to re-perform the Services. If FrikinTech notifies Client that FrikinTech is unable to remedy any material breach of this warranty, Client’s exclusive remedies are those described in Section 5(b).
NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN, DISCOVERED BY CLIENT.
(b) Regarding notifications and reports that FrikinTech provides to Client as part of the Services, FrikinTech grants to Client a nonexclusive, non-assignable, non-transferrable license to use such notifications and reports solely in accordance with the terms and conditions of the applicable Services documentation and this Agreement.
19. Notices. All notices under this Agreement will be in writing and delivered (i) personally, (ii) by registered or certified mail, postage prepaid, or (iii) by overnight courier service to the following addresses of the respective Parties.
If to Client: to the contact information provided on the Proposal or as subsequently provided in writing by the Client.
If to FrikinTech, Inc.: FrikinTech, Inc., 28 Walnut St, Suite 230, Williston, VT 05495, Attention: CFO.
The notice shall be effective as of (i) the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, (ii) five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE. CLIENT UNDERSTANDS THAT, BY SIGNING THE AGREEMENT, NEITHER PARTY WILL BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION PROVISION, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD, THE PARTIES AGREE TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR.