Professional Services Terms and Conditions

Professional Services Terms and Conditions Last Updated 17 September 2021

IMPORTANT-READ CAREFULLY: THESE PROFESSIONAL SERVICES TERMS AND CONDITIONS (“AGREEMENT”) WILL GOVERN YOUR AND MISSION CRITICAL EMAIL LLC’S (“CONSULTANT’S”) RIGHTS AND OBLIGATIONS IN RELATION TO THE PROFESSIONAL SERVICES (“SERVICES”) PURCHASED BY YOU OR DESCRIBED IN ANY RELATED ORDER, STATEMENT OF WORK, CONTRACT OR OTHER DOCUMENT BETWEEN YOU AND CONSULTANT. BY ACCEPTING CONSULTANT’S SERVICES, YOU AGREE TO BE BOUND BY THE BELOW TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE BELOW TERMS AND CONDITIONS, YOU MUST NOT PURCHASE OR USE THE SERVICES.

Definitions
1. “Confidential Information” means information or materials provided by Consultant to You which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information will be considered Confidential Information whether or not marked or identified as such: (a) license keys; (b) information regarding Consultant’s pricing, amounts paid in any Order, product roadmaps, or strategic marketing plans; and (c) non-public materials relating to the Software.
2. “Customer Content” means any of Your data, content, and confidential and proprietary information: (a) that may be disclosed to Consultant in conjunction with the performance of Services; or (b) that may be generated by You in conjunction with Your use of the Software; or (c) any trade names, trademarks, service marks, logos, slogans, trade dress, content, and web site navigation bars generated or embedded on Your website.
3. “Order” means a purchase order or other ordering document issued by You to Consultant for professional services selected by You (“Services”).
4. “You(r)” or “Customer” means the person or entity whose authorized agent has ordered Services from Consultant.
5. “Software” means the Zimbra computer programs listed on Zimbra’s web sites.
6. “Zimbra Technology” means Zimbra’s proprietary technology, including without limitations, hardware designs, algorithms, software, software and user-interface designs, architecture, documentation (both printed and electronic), network designs, know-how, trademarks, patents, trade dress, methodologies, trade secrets, confidential information, and any related intellectual property rights throughout the world (whether owned by Consultant or licensed to Consultant from a third party), used in the Services or incorporated into any deliverables, and any derivatives, improvements, enhancements, or extensions of any of the foregoing, conceived, reduced to practice, or developed whether alone or jointly with others by Zimbra or You.
7. “Consultant Technology” means Consultant’s proprietary technology, including without limitations, hardware designs, algorithms, software, software and user-interface designs, architecture, documentation (both printed and electronic), network designs, know-how, trademarks, patents, trade dress, methodologies, trade secrets, confidential information, and any related intellectual property rights throughout the world (whether owned by Zimbra or licensed to Zimbra from a third party), used in the Services or incorporated into any deliverables, and any derivatives, improvements, enhancements, or extensions of any of the foregoing, conceived, reduced to practice, or developed whether alone or jointly with others by Consultant or You.

Scope of Services
1. Consultant will provide services based upon the Services ordered. The “Statement of Work” will specify the nature of the project and work to be performed. Consultant will not perform any work requested by You outside of the scope of the Services ordered. Services are sold either on a fixed-price or per-hour basis and Services are deemed accepted upon performance. Cancellation or scheduling of any Services within 15 business days prior to the effective start date, as mutually agreed to in writing by the parties, may incur a penalty of up to 25% of the list price of the Services purchased. Services purchased must be used within a one-year period from date of Order or will result in forfeiture of Services and are nonrefundable.
2. If there is any conflict between this Agreement and any Order, the terms of the Order will control.
3. Consultant will respond promptly to a request for additional Services by submitting to You a Statement of Work specifying Services to be provided by Consultant and remuneration to be paid by You, which will be executed by the parties. Consultant will use commercially reasonable efforts to complete the Services by the applicable dates set forth in the Statement of Work (“Target Dates”).

Working Arrangement
1. You agree to provide reasonable work space, computer-machine time, personnel, technology, resources, and any other materials that may be necessary in connection with the performance of the Services as described in the Statement of Work. You represent to Consultant that You have the authority to permit Consultant to use such materials in furtherance of the Services.
2. You acknowledge that meeting the Target Dates is contingent upon timely completion of activities by You as contemplated by the parties under the applicable Statement of Work (“Client Obligation”). You will immediately advise Consultant in writing as soon as You become aware of any developments that may delay completion of a scheduled deliverable including, without limitation, Your failure or inability to perform a Client Obligation. The Target Dates (though only an estimate) will be equitably adjusted by the parties (but in no event less than a day-for-day adjustment) in writing in the event of:
  1. any delay caused by Your failure or inability to perform a Client Obligation;
  2. any delay due to Your request for changes (whether pursuant to a Change Order or otherwise);
  3. any delay due to a third party’s act, failure to act, or delay in performing any obligation whatsoever, or;
  4. any other delay incurred as a result of Your action(s) or omission(s).
3. No such delay will relieve or suspend Your obligation to pay Consultant and, in addition to such payment obligations, You will pay for any and all costs and expenses incurred by Consultant relating to rescheduling as a result of any delay caused by You.

Term and Termination
1. This Agreement commences upon Order and continues for the term described in the Statement of Work.
2. This Agreement may be terminated by Consultant upon the occurrence of any of the following events of default and Your failure to cure such default within thirty (30) days after written notice of default has been given by Consultant to You:
  1. if any undisputed sum of money owed by You is not paid when due;
  2. if any breach occurs under any of the confidentiality provisions, or;
  3. if any material breach by You occurs as to any other term of this Agreement.
3. You may terminate this Agreement on occurrence of any of the following events of default and the failure of Consultant to cure its default within thirty (30) days after written notice of default has been given by You to Consultant:
  1. if any breach occurs under any of the confidentiality provisions, or;
  2. if any material breach by Consultant occurs as to any other term of this Agreement.
4. Your payment obligations and any other provision of this Agreement, which by its terms is intended to so survive, will survive any expiration or termination of this Agreement for any reason.

Indemnification
1. Consultant agrees to indemnify You from and against any and all suits, demands, liabilities, claims, actions, and damages, including costs of litigation and reasonable attorney’s fees, arising as a direct result of the gross negligence or willful misconduct of Consultant, its officers, directors, employees, or agents. The extent of Consultant’s liability to You will be limited to the amounts of fees paid under this Agreement.
2. You agree to indemnify Consultant from and against any and all suits, demands, liabilities, claims, actions, and damages, including costs of litigation and reasonable attorney’s fees, arising as a direct result of Your gross negligence or willful misconduct, or that of Your officers, directors, employees, or agents.

Compliance With Laws
1. Consultant agrees to comply with all local, state, and federal laws applicable to employment of Consultant or pertaining to Consultant’s performance of the Services.
2. Consultant will take commercially reasonable efforts to comply with all of Your written rules and procedures that are supplied by You to Consultant at least fifteen (15) days before the rules and procedures taking effect, at the site or sites where Services are to be performed.
3. The performance of Services by Consultant pursuant to this Agreement is undertaken only as a non-exclusive independent contractor, and nothing in this Agreement or otherwise is intended or will be construed to create a joint venture, partnership, employment, or other similar relationship between Consultant and You. Neither Consultant nor any of its employees will be deemed to be Your employee or any of its subsidiaries or affiliates, nor will Consultant nor any of its employees be entitled to participate in any of Your employee benefits. Consultant will be solely responsible for the withholding or payment of all applicable federal, state, and local personal income taxes, social security taxes, workers compensation insurance, unemployment and sickness disability insurance, and other payroll taxes with respect to its employees.

Warrants and Limitations of Liability
1. Consultant warrants that all Services performed by Consultant will be of professional quality conforming to generally accepted computer-industry practices. Any work produced by Consultant, which is determined by You and Consultant to be of less than professional quality, will be corrected by Consultant without charge. This warranty is conditioned on a clear description of the Services defined in the Statement of Work and prompt (within thirty (30) days) request by You for review of work product considered to be unsatisfactory. This warranty is limited to re-performance of the unsatisfactory Services without change to the original specification.
2. IN NO EVENT WILL INDEMNIFICATION BE PROVIDED FOR A CLAIM FOR BREACH OF WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, CONSULTANT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SUITABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT, ORIGINALITY, OR FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE.
3. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, LOST SAVINGS, LOST DATA, COMMERCIAL LOSS OR BUSINESS INTERRUPTIONS INCLUDING LOSS OR DELAY OF BUSINESS OPERATIONS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
4. CONSULTANT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES ORDERED GIVING RISE TO THE CLAIM FOR, OR ALLEGEDLY CAUSING, THE DAMAGES.
5. EACH PARTY ACKNOWLEDGES THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT CONSULTANT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.

Confidential Information
1. In order to facilitate the performance of the Services as described in the Statement of Work, each party may disclose certain Confidential Information to the other party.
2. Except as required by the Freedom of Information Act or as the disclosing party may authorize in writing, during the term of this Agreement and for a period of one (1) year afterward, the receiving party and its employees:
  1. will treat and cause to be treated as confidential all Confidential Information;
  2. will limit access to Confidential Information to the receiving party’s employees and contractors with a need to know, and;
  3. will not disclose any Confidential Information, without the written direction of the disclosing party, except to the extent necessary to perform its obligations under this Agreement.
3. Consultant will maintain the confidentiality of any non-public Customer Content that You provide to Consultant and will treat the information with the same degree of care and security as Consultant treats its own confidential information. Consultant acknowledges that the disclosure of any non-public Customer Content could cause You irreparable injury for which You would have no adequate remedy at law, and that, in addition to any other remedies You may have, You will be entitled to preliminary and other injunctive relief against any violation without posting bond or proving damages.
4. Notwithstanding anything to the contrary in this Agreement, each party retains the right to use general ideas, concepts, and techniques retained by its employees in intangible form; provided that such party makes no unauthorized use of the other party’s Confidential Information or infringes the other party’s intellectual property rights.

Miscellaneous Provisions
1. Publicity. Consultant may indicate on its website and sales materials that You are a client of Consultant if the indication does not imply an endorsement of Consultant by You without Your prior written consent.
2. Assignment. This Agreement and any Orders, and any of Your rights or obligations thereunder, may not be assigned, subcontracted or transferred by You, in whole or in part, whether voluntary, by operation of contract, law or otherwise, without Consultant’s prior written consent, which consent shall not be unreasonably withheld, as in the case of an acquisition of Your company or substantially all of Your company’s assets by a third party. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
3. Notices. Any notice delivered to Consultant under this Agreement will be delivered by email to mark.stone@missioncriticalemail.com or by mail to L. Mark Stone c/o Mission Critical Email LLC, 18 Fieldstone Road, Cape Elizabeth, Maine 04107.
4. Waiver. The waiver of a breach of any provision of this Agreement will not constitute a waiver of any other provision or any subsequent breach.
5. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
6. Labor Rates. If not otherwise specified in the Order:
  1. Labor provided by Consultant in the performance of Services not delivered at a fixed price will be billed at an hourly rate of US$175.00 when such work is performed during Normal Working Hours, (defined as between 8:30am and 5:30pm, Monday through Friday, excluding US Federal Holidays, in the time zone at which Consultant is physically located). Unless Customer requests otherwise and Consultant accepts such request(s), all Services will be performed during Normal Working Hours.
  2. Services performed outside of Normal Working Hours will be billed at a labor rate of US$262.50 per hour.
  3. Time spent by Consultant traveling to Customer’s designated location(s) will be billed at US$87.50, regardless of the time of day in which such travel occurs, provided however that Consultant is not performing Services while traveling, in which case the highest applicable billing rate will be applied.
  4. Labor is billed in fifteen (15) minute increments; there is no daily nor other minimums.

Compliance with Laws; Export Control; Government Regulations.
1. Each party will comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Zimbra Software is of United States origin, is used subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that:
  1. you are not, and are not acting on behalf of:
    1. any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or;
    2. any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List, and;
  2. you will not permit the Software to be used for any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
2. The Zimbra Software is deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable.

Construction
1. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to”.

Choice of Law and Language
1. This Agreement will be governed by the laws of the State of Maine, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and to the Uniform Computer Information Transactions Act. You acknowledge that Consultant is located in Maine, in the United States. Further, you acknowledge, agree and stipulate that the laws of the United States bear a substantial relationship to this Agreement and that the selection of Maine law to govern this Agreement is reasonable and appropriate, and you consent to the selection of such law to govern this Agreement and the relationship of the parties. This Agreement has been agreed to only in the English language, which version of this Agreement will be controlling regardless of whether any translations of this Agreement have been prepared or exchanged. You acknowledge  and represent that you have carefully reviewed this Agreement with the involvement and assistance of your employees, advisors, and/or legal counsel fluent in the English language, that you have consulted with local legal counsel and counsel competent to render advice with respect to transactions governed by the law applicable to this Agreement, that you have no questions regarding the meaning or effect of any of this Agreement’s terms, and that you have obtained high-quality translations of this Agreement for use by you or any of your team who are not fluent in the English language, with the understanding that you alone will bear the risk of any misunderstandings that may arise as a result of such translation. All communications in connection with this Agreement will be in the English language.

Jurisdiction and Venue
1. All disputes arising out of this Agreement involving Consultant will be subject to the jurisdiction of the federal or state courts of Maine, with venue lying in Portland, Maine. YOU WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.

Third Party Rights
1. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained herein.

Order of Precedence
1. In the event of conflict or inconsistency among this Agreement and the Order, the following order of precedence will apply:
  1. this Agreement, and then;
  2. the Order.
2. With respect to any inconsistency between this Agreement and an Order, the terms of this Agreement will supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by You, unless the parties execute a written agreement expressly indicating:
  1. that such Order will modify this Agreement, or;
  2. that the terms of such Order will supersede and control in the event of any inconsistency.

Force Majeure
1. Consultant will not be liable for any nonperformance or delays in deliveries caused by strikes, differences with workmen, accidents, fires, floods, transportation delays, delays in procuring materials or supplies, government regulations, war, disaster, Acts of God, pandemics, or other delays caused by events beyond the reasonable control of Consultant.

Entire Agreement
1. This Agreement, including accepted Orders and any amendments to this Agreement, contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings, and agreements, whether written or oral, between the parties regarding this agreement.
2. This Agreement may be amended only in writing signed by authorized representatives of both parties.

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