Architel Terms & Conditions
Alexander Muse , December 19, 2001
These Terms and Conditions (the “Terms and Conditions”) are applicable to Architel LP (“Architel”) Service Order Form (each, a “SOF”) and are incorporated in their entirety.Each SOF executed by Architel and Customer (as defined in the SOF), together with these Terms and Conditions, is referred to collectively herein from time to time as the “Agreement”.
1. Services. Services ordered by Customer pursuant to a SOF will be referred to herein as “Services”. The applicable description(s) for any Services ordered by Customer pursuant to a SOF are hereby expressly incorporated into and form a part of these Terms and Conditions. Services are provided on as-requested basis; in the event that during any month Customer does not request Services, Customer acknowledges and agrees that Customer is still obligated to pay the Monthly Recurring Fee detailed in the SOF. Capitalized terms used in a SOF that are not otherwise defined therein shall have the meanings given to them in these Terms and Conditions, and if any capitalized term is not defined in these Terms and Conditions, such undefined term shall have the meaning generally given thereto in relevant industry practice. In the event of a direct conflict between the terms of a SOF, on the one hand, and these Terms and Conditions, on the other hand, the relevant terms of these Terms and Conditions shall control.
2. Term. The Term for the Services (the “Term”) will be for the number of months stated on the SOF, and will commence during the month specified on the SOF. Unless otherwise stated, the Term shall be month-to-month. Upon expiration of the Term, Services will continue to be provided until canceled by either party with 30 days written notice as required under Section 12.
3. Pricing. The pricing for Services will be as set forth on the SOF. Pricing shall be adjusted on each anniversary of the date of the SOF (each an “Adjustment Date”) by the percentage increase in the Consumer Price Index, All Urban Consumers, All Items, published by the U.S. Department of Labor (the “Index”). The Index published for the month immediately preceding each Adjustment Date shall be compared with the Index published for the month immediately preceding the Commencement Month in order to determine the percentage increase in the monthly pricing for the Services.
4. Warranty. Architel warrants the Services only as and to the extent set forth in the applicable SOF. ANY SUCH EXPRESS WARRANTIES AND RELATED EXPRESS REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Customer Responsibilities. In performing the Services, Architel may instruct the Customer to perform certain tasks relating to the Services. Customer shall perform all such tasks. Upon Commencement, Customer will be asked to provide detailed information regarding authorized users. Customer must keep this information up-to-date. Customer will also provide Architel, or its authorized representative, reasonable and free access to Customer’s networking equipment and computers. Throughout the term of the SOF, Customer will be contacted regularly via telephone or email and required to make various decisions regarding Customer’s networking equipment and computers; Customer agrees to promptly respond to such emails and phone calls.
6. Payment Terms and Suspension of Service. Invoices for Services will be issued monthly, in advance. Payment for Services is due by the first day of the calendar month. Payments not received by the 5th day of the month are considered late. Architel may suspend service by the 10th day of the month if payment has not been received. All charges identified on the SOF are exclusive of any sales, use or similar taxes. Any such taxes will be calculated and invoiced by Architel when and if levied by the State of Texas.
7. Collocated Equipment. Customer equipment located in Architel’s NOC will not be released until all unpaid fees have been paid. In the event that any unpaid fees are not paid within 30 days after they become due, Architel, at its discretion, may elect to sell Customer equipment to satisfy any unpaid account balances. If the sale of Customer equipment does not satisfy the account balance, Customer remains responsible for the payment of the remainder of the account balance. If the sale of Customer equipment is required to satisfy account balances, Architel has absolutely no obligation to safeguard, backup, retain, or return to Customer any data residing on the equipment.
8. Termination. Upon expiration or earlier termination of this Agreement as to a SOF or a Service (a) Architel may cease providing Services; (b) any and all payment obligations of Customer will become due and payable immediately; and (c) Customer will return all Architel equipment located at Customer’s location.
9. Default and Remedy. (a) Customer shall be in default if (i) Customer fails to pay an invoice by the 10th day of the calendar month, (ii) Customer fails to abide by any material obligation or condition of these Terms and Conditions, including Customer’s failure to make timely payments as specified herein; or (iii) Customer fails to materially perform its responsibilities in any applicable SOF; or (iv) Customer is insolvent, has made a general assignment for the benefit of creditors, has filed, or had filed against it (without obtaining a release within sixty days of filing), a petition in bankruptcy, or has had a receiver or trustee appointed for it or any of its assets. (b) In case of default, Architel may, in its sole and unfettered discretion, (w) continue to provide Services and allow customer to cure the past due payments; (x) cancel the Services provided under any or all SOFs hereunder; (y) immediately terminate all of Customer’s rights under all SOFs; and (z) require Customer to pay to Architel, upon demand, all unpaid fees.
10. INDEMNITY. CUSTOMER HEREBY AGREES TO INDEMNIFY, DEFEND, PROTECT, AND SAVE ARCHITEL AND ITS GENERAL PARTNER, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, MANAGERS, MEMBERS, SECURITY HOLDERS, AFFILIATES, AND AGENTS, HARMLESS FROM AND AGAINST, AND HEREBY ASSUMES LIABILITY WITH RESPECT TO: (I) ANY PERSONAL INJURY TO ANY PERSON, INCLUDING DEATH; AND (II) ANY LOSS OR DAMAGE TO ANY TANGIBLE PROPERTY OR FACILITIES ARISING OUT OF OR IN ANY WAY RELATING TO ANY BREACH OF CUSTOMER’S OBLIGATIONS UNDER THESE TERMS AND CONDITIONS OR THE ACTS OR OMISSIONS, NEGLIGENT, INTENTIONAL, OR OTHERWISE, OF CUSTOMER OR ANY OF ITS EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, MANAGERS, MEMBERS, SECURITY HOLDERS, AFFILIATES, OR AGENTS.
11. Limitation of Liability. Architel shall be liable only for direct damages due to gross negligence and willful misconduct. Under no circumstances shall Architel be liable for any indirect, incidental, economic, special, punitive, or consequential damages, whether for breach of contract, negligence, or any other cause of action. Architel’s total aggregate liability for any direct damages arising out of or relating to this Agreement shall be limited to the lesser of (a) $10,000.00; or (b) the amount actually paid to Architel by Customer for Services under the SOF(s) to which the damages relate.
12. Notices. Unless specifically provided for otherwise herein, a notice under these Terms and Conditions or otherwise relating to the Services shall be in writing, delivered to the address of the receiving party as set forth on the applicable SOF, and deemed effective (a) three business days after such notice is sent via registered or certified mail, or (b) when received if sent via a recognized national delivery service with proof of delivery. Each party may change its address by providing notice in accordance with this Section 12.
13. Confidentiality. Each party, for itself, its agents, employees, and representatives, agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law; provided, however, that no liability shall arise hereunder as a result of the dissemination of any information which (i) was in the possession or control of one party prior to the date of disclosure to that party by the other party hereunder, or (ii) was in the public domain or enters the public domain through no improper act by the party to which such information was disclosed or any of that party’s agents or employees, or (iii) was rightfully given to a party by a source independent of the other party. Any report or other document prepared by Architel in the performance of the Services for use by Customer shall be deemed to be confidential information hereunder. The terms and conditions of this Agreement shall also be considered confidential and proprietary information under this paragraph. Customer agrees that Architel may refer to Customer by trade name and trademark, and may briefly describe Customer’s business, in Architel marketing and on its web site. Customer also agrees not to hire or attempt to hire, or cause anyone to hire or attempt to hire, any employee or independent contractor of Architel during the term of this Agreement and for a period of three years following the termination of this Agreement, without the express written consent of Architel’s Chief Executive Officer.
14. Force Majeure. Not withstanding anything to the contrary contained herein, Architel shall not be liable to Customer for any loss or damage, or deemed to be in breach of this Agreement due to a failure to perform, wholly or in part, if such nonperformance is due to causes beyond Architel’s control, including acts of God, fire, explosion, earthquake, hurricane, tornado, wind, flood, storm, or other natural occurrences; vandalism; third party theft; computer, voice mail, e-mail, or other telecommunications system failure; any law, order, regulation, direction, action, or lawful demand of any federal, state, local, or foreign governments having jurisdiction over Architel or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more such governments, or of any civil or military authority; national emergency; insurrection; riot; war; strike, lockout, work stoppage, or other such labor difficulty.
15. Entire Agreement. These Terms and Conditions and all SOFs executed by Customer and accepted by Architel constitute the entire agreement between the parties, and supersede any prior agreements between the parties (whether oral or in writing), with respect to the subject matter hereof. Any SOF or other documents received by facsimile transmission by either party containing signatures of approval of the other party shall be deemed originals and fully enforceable. Any SOF may be executed by the parties in counterparts.
16. Binding Nature / Assignment. These Terms and Conditions and all SOFs between Architel and Customer shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement shall not be pledged, mortgaged, encumbered, assigned, or delegated (any, an “Assignment”) by Customer, in whole or in part, without first obtaining the prior written consent of Architel. Architel’s consent to one Assignment shall not be deemed to be consent to any other or subsequent Assignment. Architel’s waiver of or consent to any Assignment shall be ineffective unless set forth in writing, and Customer shall not be relieved of any of its obligations under this Agreement unless the consent expressly so provides. Any purported Assignment without the required consent shall be null and void and of no legal force or effect. Customer shall reimburse Architel on demand for any reasonable costs that may be incurred by Architel in connection with any proposed Assignment.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. The parties agree that this Agreement, including each SOF, is entered into and performable in substantial part in Dallas County, Texas. No cause of action may be asserted against either party that accrued more than one year prior to the time the facts giving rise to the cause of action are discovered or should have been discovered. In the event a suit is brought by either party, or an attorney or collection agency is retained by Architel to collect any moneys due hereunder, the prevailing party shall be entitled to recover reimbursement for reasonable attorneys’ fees and expenses, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith.
18. Severability. If any provision(s) of these Terms and Conditions are held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the parties further agree to substitute a valid provision that most closely approximates the intended economic effect of the invalid provision.
19. Survival. The portions of these Terms and Conditions that by their sense and context are intended to survive the performance thereof by the parties hereto shall survive the completion of performance and termination or cancellation of any or all SOFs between Architel and Customer, including, without limitation, the making of any and all payments due hereunder.
20. Corporate Authority. This Agreement is a legally valid and binding obligation of Customer, and is enforceable in accordance with its terms. If Customer is an entity (including but not limited to a corporation, partnership, or limited liability company), Customer represents and warrants that each individual signing this Agreement on its behalf is duly authorized to execute and deliver this Agreement on behalf of Customer in accordance with applicable law and Customer’s governing documents, and, if and to the extent necessary and applicable to an entity of Customer’s type, Customer’s Board of Directors or other governing body has approved this Agreement and authorized the individual signing this Agreement to do so on Customer’s behalf.
