Master Service Agreement
Xy Group, LLC
113 Dewitt Street (Suite 200)
Garfield, New Jersey 07026
January 1, 2017
Price & Payment of Services
Standard Rate: $150 / Hour
Off-Hour / Emergency: $300 / Hour
Exact Services for hourly development work is set by the agreed upon Statement of Work (SOW). By submitting deposit to commence SOW, you are agreeing to pay for the specific items listed and agreed upon. Any items not listed in SOW will not be included in project scope but can be noted for a succeeding SOW.
Hosting plans are configured and maintained dependant on specific agreement. Unless otherwise provided for, Xy shall setup, format, configure, structure and otherwise maintain the client’s server that stores their files that forms their site. Upon termination of Xy and client relationship, Xy shall commission a third party to continue to maintain the client’s server, and client shall be charged for the cost of such services.
Intellectual Property Rights
Xy retains full title to and sole ownership of all code (software) unless specifically stated otherwise and agreed upon.
Standard Warranty Period: 30 Days. Software environments are ever-changing and compatibility with third-party future releases cannot be known in advance. Therefore Xy is not liable to warranty compatibility of code with non-current software that materially impairs the software.
Maintenance plans specifics are dependant on Maintenance Agreement approved by client. Maintenance Plans give clients ability to pre-purchase hours at an agreed upon discounted rate.
Xy does uses commercially reasonable efforts to create hourly estimates for custom developments. It is normal for the amount of billed hours to change from the original estimate to the final invoice. Xy will do it’s best to keep clients apprised to any changes in billed time. The client is expected to pay for actual hours during the development.
Any information provided was given to the best of our ability and is based on the information available to us. The Xy Group, LLC does not assume any responsibility or liability for the advice given and shall not be liable for any direct, indirect, special, incidental or consequential damages in connection with the use of this information. The Xy Group, LLC therefore does not accept liability for any errors or omissions.
Non-Solicitation and Non-Hiring of Developer’s Employees
During the term of this Agreement, and for a period of two years after the termination of this Agreement, Client agrees not to hire or to solicit the employment of any person who (a) at the time of such solicitation or hiring is presently an employee of Developer, or (b) at any time within one year prior to such solicitation or hiring has been an employee of Developer, and directly or indirectly associated with Developer’s work effort under this Agreement. The parties recognize and agree that the damages resulting to Developer from a breach of this Section are difficult or impossible to calculate, and that irreparable injury to Developer would result from any such breach. Developer shall be entitled to injunctive relief in the event of any breach or threatened breach of this Section, in addition to any other remedy in law or equity arising therefrom. Additionally, if Client hires such a person as Client’s employee or contracts with such a person as Client’s contractor, Client shall pay to Developer liquidated damages equal to two times such person’s annual base salary immediately preceding such person’s termination of employment with Developer. The parties agree that such liquidated damages are a reasonable estimate of the damages which would be suffered by Developer in the event of such hiring.
Backups and Data Loss
Xy is not liable for data loss in connection with its services or products. You are solely responsible for creating backups of Your Content. If, during Our own routine maintenance, We do create a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that we will be able to do so, or that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups.
Termination or Cancellation
Xy is able to terminate or cancel services for any reason at any time.
Revisions of User Agreement
Check back regularly for updates last updated.
Limitation on Liability
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB-SITE AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL XY BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-SITE AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB-SITE AND/OR BUSINESS.
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL XY, OUR AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES (“AFFILIATES”), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF Xy HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF XY AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU HAVE PAID TO XY DURING THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.
Jurisdiction, Venue, and Choice of Law. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the State of New Jersey, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of Bergen County, New Jersey in the event litigation permitted under this Agreement is initiated. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Bergen County, New Jersey.
The parties agree that this choice of venue, jurisdiction, and forum as set out in the following parts of this Agreement is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in jurisdiction other than that specified in this Section.
All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party shall submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Bergen County, New Jersey and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees. Each party shall bear its own attorneys’ fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You.
If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
Relationship Between the Parties
Xy is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
Beginning upon commencement of the Services to You and continuing for a period of two (2) years after the termination of this Agreement or after any other cancellation or termination of Your account or Services with Us, You agree not to directly or indirectly, solicit, hire, contract, or otherwise employ any Xy employee who was an employee during the term of this Agreement (including the Initial Term and any successive terms), to work for You or any other firm, person or business, of whatever character, corporate or otherwise.
Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
Xy shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Xy performance.
You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that You will abide by such laws and regulations.
The software elements of the Host Materials have been developed at private expense and are “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
Notices Electronic Communications
All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided by You and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of the parties may communicate with the other by electronic means as described in this Agreement. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender’s identity and the communication’s authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.