Upon Customer’s acknowledgement, Customer engages MicroD under the following Terms & Conditions (“Agreement”) to construct, design, develop, host, and provide maintenance to a website for Customer’s business (the “Website Project”) as described on the “Scope of Work” provided to Customer.
Last Updated: 7/13/2021
RECITALS
WHEREAS, MicroD is a provider of certain web-based platforms and software services, as set forth in the applicable Scope of Work (the “Subscribed Services“);
WHEREAS, Client desires to obtain such Subscribed Services from MicroD on the terms and conditions set forth in this Addendum.
NOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
1.1 Subscribed Services. Subject to the terms and conditions of this Addendum, MicroD will provide Client with the Subscribed Services described in the Order Form. The Subscribed Services will be provided for the applicable terms set forth in the Order Form. Client may use the Subscribed Services solely for their intended purpose in accordance with this Addendum.
1.2 Client Information. Client shall designate one contact as the Party for communication with MicroD in connection with the Subscribed Services. Client may change such contact upon written notice to MicroD.
1.3 Client Content. Client shall provide MicroD with its relevant data, which shall include, but is not limited to, all materials, information, photography, writings, files, documentation, and other creative content or materials provided to MicroD that are reasonably required in order for MicroD to perform the Subscribed Services (the “Client Content“) pursuant to this Addendum. MicroD shall have full access to Client Content in order to fulfill the Subscribed Services denoted in this Addendum. MicroD shall not use any Client Content except as pursuant to the limited rights granted in this Addendum.
2.1 Subscribed Services. Subject to the terms of this Addendum, MicroD hereby grants to Client a nonexclusive, revocable, limited, non-transferable, non-sublicensable license to allow the Authorized Users to use the Subscribed Services during the Term of this Addendum. Client’s rights in the Subscribed Services will be limited to the limited license expressly granted in this Section 2.1. MicroD reserves all rights and licenses in and to the Subscribed Services not expressly granted to Client under this Addendum.
2.2 License To Client Content and Client Data. Subject to the terms of this Addendum, Client hereby grants to MicroD a non-exclusive, revocable, royalty-free, worldwide, transferable, limited license to allow MicroD to use the Client Content in connection with the Subscribed Services. MicroD rights in the Client Content will be limited to the limited license expressly granted in this Section 2.2. Client hereby grants to MicroD a non-exclusive, irrevocable, royalty-free, worldwide, transferable, limited license to allow MicroD to use the “Client Data” which shall be defined as non‑personally identifiable information collected in connection with the Subscribed Services.
2.3 Restrictions. Except for the license granted herein, Client will not knowingly (a) reproduce, display, modify, rent, sell, license, create derivative works of or distribute the Subscribed Services, or attempt to reverse engineer, decompile, disassemble or access the source code for the Subscribed Services or any component thereof; (b) use, evaluate or view the Subscribed Services for the purpose of designing, modifying, or otherwise creating any environment, program or infrastructure or any derivative thereof, which performs functions similar to the functions performed by the Subscribed Services infringes an intellectual property right (patent or copyright) of MicroD Services; (c) use the Subscribed Services or any component thereof, in the operation of a service bureau to support or process any data of any Party other than Client; (d) permit any Party, other than the then-currently Authorized User(s) to independently access the Subscribed Services; (e) access the Subscribed Services other than through the authorized User IDs and passwords; and (f) neither Client nor an Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Subscribed Services. For the avoidance of doubt, MicroD has no obligation to verify the identity of any persons who gains access to the Subscribed Services by means of Client’s authorized access.
3.1 Fees. Each SOW shall set forth the fees and costs for the Subscribed Services to be performed. Client agrees to pay all such fees in accordance with the payment terms set forth in this Section 3 unless otherwise specified in such applicable SOW. All payments under this Addendum are non-refundable.
3.2 Expenses. Client agrees to reimburse MicroD for all pre-approved substantiated expenses, travel, administrative, equipment, licensing and other out of pocket expenses incurred in conjunction with MicroD performance of the Subscribed Services. Unless included as a line item in a SOW, such expenses are not included in the fees stated therein. MicroD will maintain complete and accurate accounting records to substantiate MicroD’s charges and expenses.
3.3 Reporting. All usage figures shall be based on MicroD reporting data, which shall be the only reporting information used for calculation of any additional payments due by Client for any usage based fees set forth in each SOW.
3.4 Support and Maintenance. MicroD will provide Client with maintenance and support regarding the use of the Subscribed Services during the Term (defined herein) in accordance with each SOW.
3.5 Changes in Scope. Either Party may, from time to time, deem it necessary to make modifications by altering, adding to or deducting from the Subscribed Services described in this Addendum, including requests for changes in project plans, scope, specifications, schedule, designs or requirements. Any such request for a change must be in writing and must be executed by both Parties to become effective.
3.6 Estimates and Adjustments. MicroD shall not be responsible for delays and/or costs caused by or due to any third-Party software updates and/or updated or newer versions (the “Updates“). In the event Client desires to add Updates to the Subscribed Services, the Parties shall modify the Order Form and related fees pursuant.
4.1 MicroD Intellectual Property. As between MicroD and Client, MicroD exclusively owns or has the right to license all intellectual property rights, title, and interest in and to the Subscribed Services, including, but not limited to any and all processes, platforms, methodologies, know-how, related computer programs or applications, including all modifications, improvements, upgrades and derivative works and all intellectual property rights therein. Client agrees and acknowledges that no title to any intellectual property, including but not limited to the Subscribed Software passes to Client under this Addendum. Client shall have no claim, right, title or interest in or to the Subscribed Services.
4.2 Client Content. Client shall own all right, title, and interest in and to any and all Client Content. Client shall have sole responsibility for the accuracy, quality, integrity, and represents and warrants that it is authorized to provide such Client Content for the purposes of this Addendum.
4.3 Use of Client Data. MicroD may use the Client Data and the information that Client processes through the Subscribed Services (the “Client Data“) for MicroD business purposes, which include, but are not limited to, using the Client Data to access accounts and profiles that Client has with third parties, such as Facebook, and using the information and content in or available through such accounts in connection with the Subscribed Services. MicroD will use the Client Data in accordance with MicroD Privacy Policy. Upon request by Client, MicroD will provide Client with an electronic copy of all Client Data under MicroD’s control, provided that MicroD may charge a reasonable fee for such additional service.
5.1 Term. This Addendum shall commence on the Effective Date and continue for the Term specified in the Order Form so long as Client remains a MicroD customer. Thereafter, unless either Party provides thirty (30) days’ written notice of its intent not to renew, the Addendum will automatically renew for additional terms consistent with account type (either 1‑month or 1‑year) (each a “Renewal Term“). The Term and the Renewal Term shall be referred to herein, collectively, as the “Term.”
5.2 Termination.
(a) For Cause. Either Party may terminate this Addendum and/or an applicable Order Form at any time upon written notice to the other Party if the other Party: (i) breaches any material term hereof and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party; (ii) becomes or is declared insolvent or bankrupt; (iii) is the subject of any proceeding related to its bankruptcy, liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days; or (iv) all or a substantial portion of the assets of the other Party are transferred to an assignee for the benefit of creditors.
(b) At Will. The Client may terminate this Addendum at any time upon thirty (30) days written notice to MicroD once the initial term is completed. MicroD will be responsible for the the removal of MicroD software from the Client’s website(s), except in the case that MicroD does not have necessary access to remove software, in which Client must then provide proof that the software had been uninstalled. In case of termination not resulting from a breach by MicroD, MicroD will not refund any prepaid amounts.
6.1 As of the Execution Date and at all times thereafter, each of the Parties represents and warrants that: (a) the Addendum constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Addendum; (b) the execution and delivery of this Addendum by it and the performance of its obligations hereunder: (i) are not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; and (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court having jurisdiction over such Party; and (iii) it is in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, and all binding orders of any court, agency or other governmental body with appropriate authority and have obtained all applicable permits and licenses required of such Party in connection with their obligations under this Addendum.
6.2 Client further represents, warrants and covenants that (i) it shall use the Subscribed Services solely for its legitimate business purposes as contemplated by this Addendum, and shall not interfere with the integrity or performance of the Subscribed Services or the data contained therein or attempt to gain unauthorized access to the Subscribed Services, (ii) none of the information provided by Client to MicroD shall contain any information about any particular person or end user that is personally-identifiable information (“PII”), (iii) the Client Content and any sites to which a user is directed following a click on any such link will not contain any obscene, defamatory, infringing, illegal, deceptive, gambling related or hateful content, (iv) the Client Content will be free of any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry, (v) Client has obtained, and be deemed to have hereby granted to MicroD, all rights and/or licenses necessary to allow MicroD to use, store, audit, optimize and serve the Client Content through the Subscribed Services.
6.3 MicroD warrants and represents that: (i) MicroD will establish and maintain diligent safeguards that are compliant with applicable data privacy laws, to protect against the destruction, loss, disclosure or alteration data collected, accessed, or processed by MicroD in connection with Client’s use of the Subscribed Services, including User Data, in the possession of MicroD or to which MicroD may have access; (ii) to the extent applicable, MicroD, and MicroD employees, will not, directly or indirectly, sell, license, distribute or otherwise transfer any information that can be used to identify particular individuals to any third Party for any purpose whatsoever; and (iii) MicroD will comply at all times with applicable privacy policies, then-current industry standards and practices, and foreign and domestic laws, orders and regulations relating to privacy, security, and data protection. “User Data” shall mean any data that can be attributed to a Client customer or user or a customer or user’s computer or device, in any medium or format, including, but not limited to, clickstream data, cookies, IP addresses, or any other identifiers, and any customer or user’s personally identifiable information, such as a name, mailing address, phone number, fax number, email address, Social Security number, or credit card data, provided by or collected from the customer or user in conjunction with a customer or user’s engagement with the Subscribed Services. User Data is considered Confidential Information as defined in this Addendum.
(a) The Subscribed Services will not be available during scheduled downtime and during the loading of new data. Scheduled outages for maintenance and data loading in whole or in part (“Scheduled Downtime“) and data loading will occur whenever possible during Non‑Business Hours, although some data extract files may not be able during Non-Business Hours and the data load process may occur during Business Hours. “Business Hours” means 8 a.m. to 6 p.m. E.S.T., Monday through Friday, excluding U.S. national holidays. “Non‑Business Hours” means all hours that are not Business Hours. MicroD will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Subscribed Services in connection with Scheduled Downtime and will notify Client prior to any Scheduled Downtime.
(b) All times at which the Subscribed Services are not available to Client will be considered “Excess Downtime,” except downtime caused by Permitted Occurrences. “Permitted Occurrences” means: (i) Scheduled Downtime up to 5 hours per month; (ii) failure caused by delay or interruption in telecommunications provided by Client or by third Party services outside the MicroD-controlled network; (iii) failure caused by a Force Majeure Event; (iv) deficiencies or errors in the data feeds provided by Client; or (v) failure of Client to develop interfaces sufficient for the receipt of the Subscribed Services. “Service Availability” refers to the amount of time that Subscribed Services are available to the Client in a given period as a percentage of the total possible time in that period, less Permitted Occurrences.
(c) If Service Availability falls below 99.9% in any given calendar month, Client may request a Service Credit, which extends the length of the subscription Term at no additional charge. Client must request the Service Credit within 30 days of the month-end in which the Excess Downtime occurred, and a maximum of 1 Service Credit of up to 7 calendar days will be issued per qualifying calendar month. Service Credit will be granted according to the following schedule:
| Service Availability | Service Credit |
| 99.90%-100.00% | 0 calendar days |
| 99.80% -99.89% | 1 calendar day |
| 99.70% – 99.79% | 2 calendar days |
| 99.60% – 99.69% | 3 calendar days |
| 99.50% -99.59% | 5 calendar days |
| Less than 99.5% | 7 calendar days |
The provisions of those MicroD services identified above [the “Services”], to the Customer by MicroD is subject to the following terms and conditions [collectively, the “Agreement”]:
1.TERM. This Agreement shall become effective on the date it is executed by Customer [the “Effective Date”] and shall continue in full force and effect for not less than the Contract Terms specified in the Purchase Order [the “Contract Term”] and may be terminated as provided for in paragraph 9 below.
2.CHARGES.
2.1 MicroD shall be entitled to immediately pass through to Customer, without prior notice, any Value-Added Network interconnect charges incurred in connection with the Customer’s data transmissions, if any.
2.2 Invoices are due and payable upon receipt by Customer, and a late fee will be assessed if payment is received more than thirty [30] days after the date of the invoice. The parties agree that the late fee imposed upon Customer shall be eighteen percent 18% per annum, or, if less, the maximum rate permitted under applicable law. Any question or dispute concerning invoices must be submitted in writing within thirty days of the date of invoice.
3.TITLE AND LICENSE.
3.1 Customer understands that proprietary software belonging to MicroD may be resident on Customer’s facilities (the “Software”) during periods of connection of those facilities to the Services. Customer acknowledges and agrees that, subject to the limited license provided herein, all rights and interest in the Software remain with MicroD and no title or interest in the Software is transferred to Customer under this Agreement or otherwise.
3.2. MicroD hereby grants Customer a non-exclusive, non-transferable limited license to use the Software for purposes of this Agreement only and in the regular course of its business. Customer agrees not to transfer, adapt, modify, otherwise copy, reverse assemble, reverse compile, or otherwise translate or distribute the Software or rent, lease, assign or attempt to license it. The license shall terminate with the termination of the Agreement.
4. CONFIDENTIALITY. Each party hereto agrees not to disclose, copy, or use for any purpose other than the performance of this Agreement, and to treat as confidential and as proprietary to each other, all information which relates to the other party’s technology, research and development, business affairs, pricing, or the other terms of this Agreement (collectively the “Confidential Information”). MicroD and Customer each further agrees to protect the Confidential Information with the same degree of care it exercises to protect its own confidential information and to prevent its unauthorized disclosure. In no event, however, shall less than a reasonable standard of care be used. The foregoing shall not apply to information which: (i) is publicly available; (ii) rightfully obtained from a third party; or (iii) required to be disclosed by a regulatory or governmental authority or action, provided that the recipient of the information promptly provides advance notice to the other party of any such disclosure requirement. The terms of this Section shall survive termination of the Agreement.
5 INDEMNIFICATION. If Customer permits the Services to be used by any third party, Customer will indemnify MicroD and its affiliated companies and its or their respective officers, directors, employees, agents or subcontractors from all costs, expenses, liabilities, losses, damages, suits, fines, penalties, claims, and demands of every kind or nature, including reasonable attorney’s fees, asserted by or on behalf of any person or entity arising out of or related to such third party use of the Service.
6. CUSTOMER RESPONSIBILITIES.
6.1 Customer shall be solely responsible for protection of its transmission facilities premises equipment, its data entered on the Service, and its ID(s), password(s), usernames, and the like, from all unauthorized access or use. All Customer requests for MicroD to assign additional ID(s) or password(s), or to make changes to or delete any of Customer’s assigned ID(s) or password(s), must be in writing. Customer understands and agrees that MicroD does not guarantee the Service against compromise and that MicroD will not be liable, either in contract, in tort or under any other theory, for any loss resulting therefrom, including without limitation any direct or indirect loss resulting from unauthorized access to, or alteration, theft, or destruction of data files, programs and/or information of Customer.
6.2 Should Customer undertake to directly connect or interconnect the Service to any other vendor’s “service” or “network” and MicroD suffers harm or usage or traffic from such direct connection or interconnection, then Customer agrees that it shall be solely responsible and shall indemnify MicroD for all charges and damages suffered by MicroD. Notwithstanding the foregoing, MicroD may suspend Customer’s access to and/or use of the Service at any time if, in MicroD’s sole discretion, the integrity or security of the Service is in danger of being compromised.
6.3 If Customer’s own equipment, applications, or other obtained services are not available or in working order, Customer shall remain liable for charges for Service ordered from MicroD whether Customer is or is not accessing and making use of such services.
6.4 During the term of this Agreement and any renewals thereof and for a period of One (1) year after the termination of initial and renewal periods, Customer agrees, as a condition of this Agreement that neither the Customer nor any of its Personnel will solicit or offer employment to any of MicroD’s employees or contractors, or otherwise directly or indirectly, on a full-time, part-time or temporary basis, hire their services without prior written permission of MicroD.
7 LIMITED WARRANTY.
7.1 MicroD hereby warrants that, as part of the Service, it will transmit and deliver the data furnished by the Customer in a mutually agreed format, log and archive transactions, and supply those other services selected by Customer. As part of its services MicroD will provide upgrades to its software from time to time at no additional cost for the above services and provide reasonable telephone or email-based support to the Customer on business days between the hours of 8:30 am and 5:30 pm eastern standard time.
7.2 If data furnished by the Customer is lost, destroyed or impaired [”Loss”] through the sole negligence of MicroD, then MicroD’s liability and Customer’s sole remedy shall be that MicroD will either (i) to the extent reasonably possible, restore Customer data from MicroD archives after receiving written notice of said Loss if MicroD is notified of the Loss within fifteen (15) days of the Loss, and provide Customer a credit for charges paid in connection with the transmission lost, or (ii), if MicroD is notified of the Loss beyond said (15) day period, provide Customer a credit for charges paid in connection with the transmission of the lost data. Under no circumstances shall MicroD be responsible for duplication of messages transmitted by the Customer.
7.3 EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THIS SECTION 7, MicroD MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, INCLUDING THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES RESPONSIBILITY TO TAKE ADEQUATE PRECAUTIONS AGAINST DAMAGES TO ITS OPERATIONS WHICH COULD BE CAUSED BY DEFECTS OR DEFICIENCIES IN THE SERVICES.
8. LIMITATION OF LIABILITY.
8.1 IN NO EVENT SHALL MicroD OR AN AFFILIATED COMPANY OR ANY OF ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBCONTRACTORS [COLLECTIVELY FOR THE PURPOSES OF THIS SECTION “MicroD”] BE LIABLE FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR SAVINGS, LOSS OF USE OF THE SERVICES, COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS AND THIRD PARTY CLAIMS, ARISING IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, AND/OR THE INTENDED USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORIES, EVEN IF MicroD HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 IN NO EVENT SHALL ANY DAMAGES WHICH MAY BE ASSESSED AGAINST MicroD FOR ANY REASON EXCEED THE PRICE PAID TO MicroD BY CUSTOMER FOR THE SPECIFIC SERVICES RENDERED UNDER THIS AGREEMENT WHICH ARE THE BASIS FOR THE CLAIM.
8.3 THE REMEDIES PROVIDED FOR IN THIS AGREEMENT ARE EXCLUSIVE.
9. TERMINATION.
9.1 This Agreement may be terminated by Customer prior to the end of the Contract Term upon thirty [30] days prior written notice and after paying a cancellation charge larger of (1) minimum charges due for the remaining term of the Agreement or (2) early termination fee amount as set forth above.
9.2 Notwithstanding the above, if MicroD adjusts the transactions processing prices set forth above, higher than the prices set at the date of this agreement, within 30 days of a notice of price increase by MicroD to the Customer this Agreement may be terminated by the Customer upon thirty [30] days prior written notice to MicroD for no further obligation and for no penalties and cancellation charges.
9.3 In the event of non-payment of charges for thirty days after invoice dates by the Customer, MicroD has a right to terminate this Agreement and Services provided for hereunder without further notice to the Customer. All unpaid charges including the cancellation charges as mentioned in section 9.2 above will be due immediately.
9.4 Upon termination, and subject to payment of all charges due MicroD including the cancellation charge stated above, Customer data will be provided to Customer in electronic form. Because records are shared between and among users of the Services, they will not be erased or deleted from MicroD records on termination of Services by an individual Customer. In any event, records of data transmissions will be available only to parties involved in their creation.
10. MISCELLANEOUS.
10.1 This Agreement may not be assigned, except to an affiliated company or a successor in interest, by either party without the other party’s prior written consent, which consent shall not be unreasonably withheld. Nothing herein shall be construed to give any rights enforceable by any third party.
10.2 No modification or amendment to this Agreement, nor any waiver or consent to any departure from any of its provisions, shall be valid or effective unless in writing and signed by both parties hereto. No waiver of any breach of any provisions hereof shall be construed to be a waiver of any succeeding breach of such provision or any other provision hereof. Delay or failure to exercise any right or remedy shall not be deemed a waiver of that right or remedy.
10.3 Any notice under this Agreement shall be in writing and shall be deemed delivered on the date service is made personally, or by facsimile transmission and confirmed received, the day following delivery if sent by overnight courier, or five [5] days after the date of mailing if sent registered mail, postage prepaid, return receipt requested, and addressed to the parties at their respective addresses set forth on the last page of this Agreement or to such other address as either party may, from time to time, designate.
10.4 The obligations of the parties under this Agreement shall be suspended to the extent and for the period of time that a party hereto is hindered or prevented from fulfilling its obligations because of any cause beyond its reasonable control, including without limitation, utility or communication failures or delays, failure of vendors and suppliers, labor disturbances, explosions or governmental action; provided, however, that Customer shall remain obligated to make any payments due and payable to MicroD through the date a Force Majeure event precluded performance by either party. The party affected by a Force Majeure event shall not be liable to the other party for any damages resulting therefrom.
10.5 Other Sections of the Agreement notwithstanding, MicroD reserves the right to discontinue the Service to Customer in the event of bankruptcy (voluntary or involuntary), insolvency or non-payment for services on the part of Customer. Customer agrees to reimburse MicroD for reasonable collection expenses on delinquent accounts, including attorney’s fees.
10.6 Nothing herein contained shall be construed as constituting a partnership, joint venture, or agency between the parties hereto.
10.7 Notwithstanding that either party may have terminated this Agreement in accordance with provisions herein, Sections 2, 3, 4, 5 and 8 shall continue in full force and effect until discharged.
10.8 This Agreement constitutes the entire understanding of the parties, and supersedes all prior or contemporaneous arrangements, commitments, agreements, whether written or oral, with respect to the subject matter hereof.
10.9 This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina without giving effect to South Carolina’s conflict of law principles.
Solutions
Resources
Our Offices
