WHEREAS, WinfoSoft Inc., a Pennsylvania corporation (“Provider”) wishes to provide, and the undersigned customer (“Customer”) desires to receive certain Services (as described with particularity in Section 2(a) below); and
WHEREAS, Provider is willing to provide the Services to Customer on the terms and subject to the conditions set forth in these General Terms and Conditions (these “General Terms”); and
WHEREAS, in addition to these General Terms, Customer and Provider may enter into one or more Statements of Work, Professional Services Agreements, or other written agreements governing specific services or aspects of their relationship; and
WHEREAS, except as otherwise expressly stated in any such agreement, in the event of any conflict among the governing documents, the order of precedence shall be: (1) these General Terms, (2) the applicable Statement of Work, (3) any Professional Services Agreement, and (4) any other legally binding agreement between the Parties.
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in these General Terms, the parties intending to be legally bound agree as follows:
(a) Purpose. These General Terms set forth the terms and conditions under which Provider agrees to provide certain services including implementation services, upgrade services, and support services (the “Services”), as may be detailed in a Statement of Work.
(b) Authorized Users. Unless otherwise limited by the Statement of Work, Customer and, at the discretion of Customer and its employees shall be authorized to use the Services. Customer will not allow the Services to be used by, or disclose all or any part of the Services to, any person except authorized users.
(c) Restrictions on Use.
(i) Except to the extent contrary to applicable law, Customer is prohibited from causing or permitting the reverse engineering, disassembly, or decompilation of the Services, or removing any proprietary notices thereon
(ii) Customer is prohibited from using the Services to provide service bureau data processing services or to otherwise provide data processing services to third parties.
(iii) Customer and its authorized users will not access or use the Services in order to develop a similar or competitive product or service to the Services or for any illegal, harmful, fraudulent or offensive purpose or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, indecent, obscene, defamatory, libelous, abusive, harassing, threatening, fraudulent, offensive, enables online gambling or inconsistent with the generally accepted practices of the Internet community, including without limitation promoting or facilitating pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, spamming, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming, and use of content or technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
(iv) Without limiting the foregoing, Customer may allow third party consultants of Customer to access the screen displays only of the Services solely for data input and retrieval purposes on a strict “need to know” basis, and such use shall not be deemed a non-permitted disclosure of the Services.
(v) Customer acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Services and Customer will neither export or re-export, directly or indirectly, the Services, nor any direct product thereof in violation of such laws, or use the Services for any purpose prohibited by such laws.
(d) Time of Provider Performance of Services. For the Term of these General Terms, including renewals, extensions, amendments and modifications, Provider shall provide the Services during the applicable timeframes described in the Statement of Work.
(e) Non-exclusivity. Nothing herein shall be deemed to preclude Customer from retaining the services of other persons or entities undertaking the same or similar functions as those undertaken by Provider hereunder, or for Provider to provide similar services to its other customers or the public at large.
(f) Change to the Services. Customer may, upon written notice, request increases to the scope of the Services under the Statement of Work. If Customer requests additional Services or an increase in the scope, Provider shall, after receiving the request, notify Customer (i) whether Provider will agree to provide the requested additional and/or expanded Services and (ii) the extent to which the change will result in increased cost to Customer. If Customer approves, Provider shall issue an amended or amendment to the Statement of Work.
(a) Effective Date. The “Effective Date” referenced herein shall be the date set forth on the signature page of these General Terms, or, if no date is specified, the date on which the last party signs. If a Statement of Work between the parties lists a different effective date, that date shall govern.
(b) Term. Unless these General Terms is terminated earlier in accordance with the terms set forth in this Section, these General Terms shall commence on the Effective Date, and expire on the first anniversary of the Effective Date or the next business day (the “Initial Term”). Following the Initial Term, these General Terms shall automatically renew for successive 1-year periods (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”) unless one party notifies the other, in writing, at least 30 days prior to the expiration of the Initial Term or any Renewal Term that it intends to terminate these General Terms.
(c) Termination for Cause. Either party may terminate these General Terms if the other party materially breaches these General Terms and (if such breach is curable) fails to cure such breach within 30 days of being notified in writing to do so; provided, however, Customer’s failure to pay any undisputed amount when due shall not require notice and an opportunity to cure. In addition, either party may terminate these General Terms if the other party (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) Payments Upon Termination. Upon the expiration or termination of these General Terms or any affiliated agreements including the Statement of Work, for any reason, Customer shall pay to Provider all undisputed amounts due and payable hereunder.
(e) Return of Materials. Upon expiration or termination of these General Terms, each party shall: (i) promptly return to the other party, or certify the destruction of any of the following of the other party held in connection with the performance of these General Terms all Confidential Information (as defined in Section 9(b)) and any other data, programs, and materials; and, (ii) return to the other party, or permit the other party to remove, any property of the other party then situated on such party’s premises. In the case of Customer Data, Provider shall, promptly upon expiration or termination of these General Terms provide Customer with a final export of Customer Data. The parties agree to work in good faith to execute the foregoing in a timely and efficient manner. This Section shall survive expiration or termination of these General Terms.
Customer shall be responsible for and shall pay to Provider the fees as further described in the Statement of Work. Unless otherwise provided, Provider shall charge a 5% fee for its services (“Service Fee”). As of each anniversary of the Effective Date, the Services Fee will be increased by 2% over the Service Fees for the prior 12-month period unless otherwise agreed by the parties.
(a) Invoicing. Unless otherwise provided for under the Statement of Work, Provider shall bill to Customer the sums due pursuant to the Statement of Work by monthly invoice. No failure on the part of Provider to provide timely invoices or to meet any particular content requirement contained in this Subsection shall relieve Customer of its obligation to pay Service Fees and expenses.
Suspension of Services; Acceleration of Fees. If Client fails to make any payment when due, Provider may immediately suspend all Services without further notice. In the event of any missed or late payment, all fees due for the entire remaining Term of these General Terms, Statement of Work, or other agreement shall automatically accelerate and become immediately due and payable in full, unless otherwise expressly agreed in writing by the parties. Services will not be reinstated until Provider has received full payment of all accelerated amounts then outstanding. If Client fails to cure the non‑payment by paying all accelerated amounts within thirty (30) days after the original invoice date, such unpaid amounts will accrue interest as set forth below. Suspension of Services shall not affect Client’s obligation to pay all amounts owed, including accelerated fees and applicable interest.
(b) Interest on Late Payment. If any payment due to Provider under these General Terms is not paid when due, then Customer shall pay interest thereon (before and after any judgment) at an interest rate of 1.5% per month or the maximum permitted by law, starting on the due date of payment and ending on the actual date of payment, such interest to run from the date upon which payment of such sum became due until payment thereof in full.
(c) Taxes. All prices are exclusive of applicable taxes, including without limitation, sales and use taxes. Provider reserves the right at any time during any applicable term, including after the expiration of this SOW, to collect from Customer any taxes that are applicable to the Services used by Customer which are levied on such Services by a governing authority and required to be collected by Provider. Customer acknowledges that it shall be responsible for the payment of all fees for Services that are rendered by Provider. Customer’s agreement to pay such taxes does not include payment of federal, state, or local taxes based upon Provider’s income.
If described in the Statement of Work, Customer shall provide resources (e.g., technology equipment) to Provider that are reasonably required for the purpose of providing the Services.
Customer and Provider represent and warrant that:
(a) it is a business duly formed, validly existing, and in good standing under the laws of its state of formation or, if an individual or sole proprietorship, a natural person of majority age and competence to contract;
(b) it has all requisite financial capacity, and authority to execute, deliver, and perform its obligations under these General Terms;
(c) these General Terms, when executed and delivered, shall be a valid and binding obligation, enforceable in accordance with its terms;
(d) the execution, delivery, and performance of these General Terms has been duly authorized by it; and
(e) it is in compliance with and it shall continue to comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under these General Terms and shall obtain all applicable permits and licenses required of it in connection with its obligations under these General Terms.
(a) Customer is solely responsible for all data, information, records, and materials (“Customer Data”) that Customer stores, processes, transmits, or otherwise provides in connection with the Services. Customer is solely responsible for complying with all applicable data‑protection, privacy, information‑security, and breach‑notification laws, regulations, and standards relating to Customer Data, including without limitation the collection, use, processing, storage, retention, disposal, and protection of Customer Data. Customer is also solely responsible for any data breaches, unauthorized access, loss, disclosure, corruption, or security incidents involving Customer Data, regardless of cause.
(b) Provider has no obligation to monitor, review, access, store, protect, or secure Customer Data; to ensure Customer’s compliance with data‑protection or privacy requirements; or to implement or maintain any data‑security safeguards on behalf of Customer, except where the Parties expressly agree in a separate, written, and duly executed agreement that specifically identifies the privacy, security, or surveillance obligations to be undertaken by Provider. In the absence of such a separate written agreement, no data‑processing, data‑protection, or security obligations shall be implied.
Customer agrees that Provider shall not be liable for any breach, incident, or violation arising from or related to Customer Data, systems, vendors, or failure to meet its regulatory or privacy obligations.
(a) Confidentiality Agreement. If Provider and Customer are parties to a separate written confidentiality or non‑disclosure agreement, including any confidentiality or non-disclosure agreement in the Statement of Work, that agreement shall exclusively govern the treatment of confidential information between the Parties. In such case, the confidentiality provisions of these General Terms shall not supersede or replace the terms of that separate agreement. However, if no such agreement exists, these General Terms shall govern.
(b) Confidential Information. Both Parties will maintain confidentiality of all non‑public information disclosed during the Term and use such information only to fulfill obligations under the Statement of Work.
(c) Exclusions. Confidential information does not include information that is public, independently developed, or lawfully obtained without restrictions.
(a) Intellectual Property Agreement. If Provider and Customer are parties to a separate written intellectual property agreement, including any intellectual property agreement in the Statement of Work, that agreement shall exclusively govern the treatment of intellectual property between the Parties. In such case, the intellectual property provisions of these General Terms shall not supersede or replace the terms of that separate agreement. However, if no such agreement exists, these General Terms shall govern.
(b) Future Materials. Customer acknowledges that, in the course of performing the Services, Provider may create, develop, enhance, customize, or modify the Services (collectively “Future Materials”). Customer acknowledges that such Future Materials shall remain the sole and exclusive property of Provider, irrespective of contributions by Customer or other individuals, organizations, or entities apart from Provider.
(c) Trademarks & Copyrights. Customer warrants that it has full right and authority to grant to Provider the right to use any applicable trademarks or copyrighted material of Customer’s in connection with the Services.
(d) Survival. Except as otherwise provided herein, the provisions of this Section shall survive the expiration or termination of these General Terms.
(a) Provider Limited Services Warranty.
(i) Provider warrants to Customer that the Services will be performed in a professional and workmanlike manner, consistent with generally accepted industry standards, and in accordance with the specifications expressly set forth in the applicable Statement of Work. If Customer notifies Provider in writing of any material failure of the Services to conform to this warranty within thirty (30) days after the applicable Services are performed, and provides sufficient information for Provider to identify and replicate the issue, Provider shall use commercially reasonable efforts to re‑perform the non‑conforming Services as soon as practicable.
(b) Exclusive Remedies. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and Provider’s entire liability, for any breach of the limited warranty set forth in this Section. No other warranties, express or implied, including warranties relating to Microsoft products or third‑party software, shall apply.
(c) Disclaimer of Warranty.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THESE GENERAL TERMS, THE SERVICES OR ANY OTHER SERVICES PROVIDED BY PROVIDER ARE PROVIDED “AS IS.” PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND OR NATURE WITH REGARD TO THE SERVICES OR ANY SERVICES PROVIDED BY PROVIDER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY OUTPUT OR RESULTS OF USING THE SERVICES OR ANY OTHER SERVICES PROVIDED BY PROVIDER, AND PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
(i) PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE, WILL MEET CUSTOMER’S REQUIREMENTS, OR OPERATE IN ALL COMBINATIONS SELECTED BY A CUSTOMER USER.
(ii) Abrogation of Limited Warranty. The limited warranties set forth in Section 11(a) shall be void to the extent any material non‑conformity in the Services results from: (A) any modification, alteration, or change to the Services made by any party other than Provider or its authorized agents or contractors, unless such modification was expressly approved in writing by Provider; or (B) Customer’s failure to implement corrections, updates, recommendations, or other changes provided or made available by Provider that are necessary to remediate or prevent the non‑conformity.
(e) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 11 AND IN SECTION 12 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE GENERAL TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(f) HIGH RISK ACTIVITIES. THE SERVICES OR ANY OTHER SERVICES PROVIDED BY PROVIDER ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATION SYSTEMS, MASS TRANSIT, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES OR ANY OTHER SERVICES PROVIDED BY PROVIDER COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). ACCORDINGLY, PROVIDER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. CUSTOMER AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE CLOUD SERVICES, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED BY PROVIDER IN SUCH APPLICATIONS.
(a) Customer’s damages shall be limited to the fees paid or payable by Customer to Provider in the twelve (12) months preceding the claim for damages.
(b) PROVIDER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, AND/OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE GENERAL TERMS EXCEPT FOR A BREACH RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(a) Relationship between Customer and Provider. Provider is an independent contractor and has no authority to bind, commit, or incur obligations on behalf of Customer, except as expressly provided in these General Terms. Provider shall not represent itself as an agent, employee, partner, or joint venturer of Customer.
(b) Assignment; Change of Control. Customer may not assign, transfer, delegate, or otherwise dispose of any of its rights or obligations under these General Terms, whether by contract, operation of law, merger, change of control, reorganization, or sale of all or substantially all of its assets, without the prior written consent of Provider, which consent shall not be unreasonably withheld or delayed. Any attempted assignment or transfer by Customer without such consent shall be null and void. Notwithstanding the foregoing, Provider may assign these General Terms, in whole or in part, to any affiliated entity or in connection with a merger, reorganization, restructuring, or sale of all or substantially all of Provider’s assets.
(c) Governing Law. These General Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law principals.
(d) Venue and Jurisdiction. The parties agree that any claim, action, or lawsuit over any dispute arising out of or relating to these General Terms or any of the transactions contemplated under these General Terms shall and must be initiated in any federal or state court located within the Commonwealth of Pennsylvania, sitting in York County, and the parties further agree that venue for all such matters shall lie exclusively in those courts. This choice of venue is intended by the parties to be mandatory and not permissive in nature. The parties irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have, including any claim of forum non conveniens or similar doctrine or theory, to venue in the courts located in the Commonwealth of Pennsylvania and each of the parties consent to the personal jurisdiction of such courts (and of the appropriate appellate courts therefrom) and to service of process upon them in accordance with the rules and statutes governing service of process in any such suit, action or proceeding.
(e) Attorney’s Fee. Provider shall be entitled to recovery of attorney’s fees, costs, and expenses incurred in enforcement of these General Terms, in addition to any other relief to which Provider may be entitled.
(f) Force Majeure. Other than Customer’s obligation to pay Service Fees and expenses of Provider, neither party shall be liable for delays or any failure to perform the Services or these General Terms due to causes beyond its reasonable control. Such delays include, but are not limited to fire, explosion, flood or other natural catastrophe, viral outbreak, epidemic, pandemic, disease, public health emergencies, governmental responses to these emergencies and civil disturbances related to these conditions, voluntary or mandatory compliance with any direction, request, or order of any person having or appearing to have authority in that regard whether for defense or other health and safety, statutory, governmental, or national purpose governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.
(g) No Waiver. The failure of either party at any time to require performance by the other party of any provision of these General Terms shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of these General Terms be taken or held to be a waiver of any further breach of the same provision.
(h) Severability. If any provision or portion of these General Terms shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
(i) Notices. Any notice required or permitted under these General Terms shall be in writing and may be given by any commercially reasonable means that provides proof of delivery to the addresses appearing at the end of these General Terms, or as changed through written notice to the other party, which written notice shall comply with this Section. Notice shall be deemed effective when received, when delivery is refused or when the sender can otherwise demonstrate delivery or refusal to accept delivery.
(j) Counterparts; Facsimile. These General Terms and any counterpart thereof may be executed either (i) on paper with an ink signature or (ii) electronically, and any counterpart may be transmitted by email or other electronic means. Each counterpart of these General Terms, when so executed and transmitted or otherwise delivered, shall be deemed valid and acceptable for all purposes as an original and all such counterparts shall constitute one and the same document. For avoidance of doubt, any counterpart may be converted from paper to electronic form, or from electronic form to paper, and such converted counterpart shall be deemed an original for transmission, execution, delivery and retention pursuant to the Electronic Signatures in Global and National Commerce Act, Title 15, United States Code, Sections 7001 et seq., or other applicable law.
(k) Entire Agreement. These General Terms and its attached exhibits, together with all Statement of Work, constitute the entire agreement between the parties on the subject matter to which it relates and it supersedes any and all previous representations, understandings, or agreements between Customer and Provider as to the subject matter hereof. These General Terms may only be amended by an instrument in writing signed by the parties.