DataCall Systems Services Agreement

This Software Services Agreement ("Agreement"), is made as of the Order Date of the service, by and between DataCall Systems, Inc. ("DataCall Systems"), and the ordering party ("Customer").
  1. Services. DataCall Systems will provide Customer with use of the hardware and software the support services set forth in Exhibit A, Schedule of Services to this Agreement (collectively, the "Services").
     
  2. Customer Responsibilities. Customer is responsible for establishing and maintaining its Internet connection necessary to access and use the Services.
     
  3. Service Levels. DataCall Systems will use commercially reasonable efforts to make the Services available in accordance with prevailing hosting industry standards. DataCall Systems will use commercially reasonable efforts under the circumstances to remedy any interruptions, omissions, mistakes, accidents or errors in the Services and restore the Services.
     
  4. Technical Support. DataCall Systems shall provide support to Customer with respect to access and availability of the software maintained by DataCall Systems pursuant to this Agreement ("DataCall Systems Support"). DataCall Systems Support shall be available via telephone and email. In addition to DataCall Systems Support, DataCall Systems shall provide Customer with consulting and technical services regarding operation of the software. Customer acknowledges and agrees that DataCall Systems will provide all server-side installation, customization, setup and support, and that neither Customer nor any third party engaged by customer shall be permitted to provide such services.
     
  5. Term and Termination. This Agreement shall commence on execution by the parties and shall continue until terminated by the parties. Customer shall have the right to terminate this Agreement for any reason upon 30 days written notice. In addition, DataCall Systems shall have the right to terminate this Agreement immediately, in the event that Customer ceases to do business in the normal course.
     
  6. Payment. Customer agrees to the fees for the Services as set forth in Exhibit A. All payments for fees shall be made in U.S. Dollars. All fees for the Services shall be paid in advance upon execution of this Agreement. Fees for additional Server Support incurred by Customer under Section 4 shall be invoiced to Customer in arrears at the beginning of the month following the month in which they are incurred. Any additional charges, including, but not limited to, any early cancellation charges, accrued interest, and late fees, may be invoiced in arrears. All payments for fees are due within thirty (30) days of the invoice date. Amounts that are not paid in full when due will be subject to interest charges of the lesser of one and one-half percent (1.5%) per month or the highest amount permitted by law, which interest shall accrue daily. If Customer does not give DataCall Systems written notice of a dispute with respect to DataCall Systems charges or taxes within one (1) month of the date of an invoice, such invoice shall be deemed to correct and binding on Customer. In the event Customer fails to pay an invoice within 30 days of invoice date, DataCall Systems may issue a notice of default, and may discontinue the Services and/or terminate this Agreement in the event Customer has not fully paid all invoices within seven (7) days of the default notice. Customer agrees to pay DataCall Systems its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under this Agreement.
     
  7. Taxes. Customer shall be liable for, pay and, to the extent applicable, reimburse DataCall Systems for all local, state, federal and foreign taxes or similar assessments or charges (including any interest and penalties imposed thereon), arising out of this Agreement or the sale or use of the Services hereunder but excluding taxes based on the net income or gross receipts of DataCall Systems. DataCall Systems will have the right, at any time during any term of this Agreement, to pass through and invoice to Customer any new or increased fees, assessments, taxes or other charges imposed on, or required to be collected by, DataCall Systems or its subcontractors or agents by any governmental agency or its designee. In addition, Customer will pay and be solely responsible for all taxes, fees and charges levied directly upon it. If Customer provides DataCall Systems with a duly authorized exemption certificate, DataCall Systems will exempt Customer in accordance with the law, effective on the date DataCall Systems receives the exemption certificate.
     
  8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3 ABOVE, DATACALL SYSTEMS (a) MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING, AND (b) DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. DataCall Systems exercises no control over and accepts no responsibility for the content of the information passing through the Services. DataCall Systems specifically denies any responsibility for the accuracy or quality of information obtained through the Services. Use of any information obtained via the Services is at Customer's own risk.
     
  9. Limitation of Damages. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL EITHER PARTY OR ANY OF DATA CALL SYSTEMS' SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST REVENUE, OR LOST DATA), NOR SHALL DATA CALL SYSTEMS' SUPPLIERS OR LICENSORS BE LIABLE FOR DIRECT DAMAGES TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL DATA CALL SYSTEMS' AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE) EXCEED THE LESSER OF $100,000 OR THE AMOUNTS PAID TO DATA CALL SYSTEMS FOR THE SERVICES GIVING RISE TO A CLAIM IN THE TWELVE MONTHS PRECEDING THE DATE OF SUCH CLAIM. Customer agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with the Services and that the fees payable under this Agreement have been calculated on the basis that DataCall Systems shall exclude liability as provided in this Section.
     
  10. Confidential Information. Commencing on the date Customer executes this Agreement and continuing for a period of three (3) years from the termination of this Agreement, each party shall protect as confidential, and shall not disclose to any third party without the disclosing party's written consent, any Confidential Information received from the disclosing party or otherwise discovered by the receiving party during the term of this Agreement, including, but not limited to, the pricing and terms of this Agreement, and any information relating to the disclosing party's technology, business affairs, marketing or sales plans, and any non-public information regarding the performance of the Services (collectively the "Confidential Information"). The parties shall use Confidential Information only for the purpose of this Agreement and shall only disclose Confidential Information to affiliates, employees, subcontractors or advisors under a similar obligation of confidentiality. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (i) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (ii) is, or becomes publicly known, through no wrongful act or omission of the receiving party; (iii) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (iv) is developed independently by the receiving party without reference to the Confidential Information, or (v) is required to be disclosed by law, regulation, or court or governmental order, however, the party subject to such law, regulation or court or governmental order shall use reasonable efforts to minimize such disclosure and shall notify the other party contemporaneously of such disclosure.
     
  11. Data; All data created or transmitted by Customer and stored on DataCall Systems servers as part of the Services ("Customer Data") shall at all times be owned by Customer. DataCall Systems shall treat Customer Data as Confidential Information. Upon termination or cancellation of this Agreement for any reason, DataCall Systems shall return all Customer Data to Customer in the file format in which it is stored on DataCall Systems' servers. As a convenience for Customer, DataCall Systems shall perform a regular backup of all Customer Data, but DataCall Systems shall in no event be liable to Customer or any third party for loss, destruction or corruption of Customer Data. Customer agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with loss of Customer Data and that the fees payable under this Agreement have been calculated on the basis that DataCall Systems shall exclude liability as provided in this Section.
     
  12. Software; Upon termination or cancellation of this Agreement for any reason, DataCall Systems shall provide Customer, upon Customer's written request, copies of  programs, procedures, rules, and any associated documentation pertaining to the operation of the system ("Software") in the file format in which it is stored on DataCall Systems' servers.  DataCall Systems will grant Customer a world-wide, royalty-free, non-exclusive, perpetual, license to use the Software in the same way that was used prior to termination or cancellation of the Agreement. Subject to the rights and licenses granted hereunder, DataCall Systems retains all right, title and interest in the Software including all copyrights thereto.
     
  13. Security. All access to the Services shall be controlled by user names and passwords issued by DataCall Systems to Customer from time to time upon request by Customer. Each user name and password will be unique to each user that Customer designates is authorized to access the Services. Customer is solely responsible for the security of the user names and passwords issued to Customer's users. Any access to the Services using such user names and passwords will be deemed access by Customer, except where access is the result of unauthorized disclosure of user names and passwords by the negligent or willful act of DataCall Systems.
     
  14. Force Majeure. DataCall Systems shall not be deemed to be in default of any provision of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond DataCall Systems' reasonable control.
     
  15. Other. This agreement shall be interpreted in accordance with the laws (except the rules on conflict of laws) of the Commonwealth of Virginia, except that both parties waive their rights under, and hereby exclude application of, Virginia's enactment of the Uniform Computer Information Transactions Act. Neither party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided that DataCall Systems may assign this Agreement or any of its rights hereunder to an affiliate or successor without Customer's written consent. This Agreement sets forth the entire and exclusive agreement between the parties, superseding all prior or contemporaneous representations, proposals, quotes, agreements or understandings concerning the subject matter addressed herein. Except as otherwise set forth herein, no amendment to this Agreement shall be valid unless in writing and signed by both parties. Any controversy or claim between the parties arising out of or relating to this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment entered upon the award by the arbitrator may be entered in any court having jurisdiction thereof. Any Arbitration proceedings shall be held in the Washington, DC. Metropolitan Area.

The parties agree to the terms of this agreement and the attached Exhibit "A" effective on the later date of the signed dates below, which shall be the Order Date.

Customer

______________________________

by ____________________________

Signed Date _____________________

 

DataCall Systems, Co.

by ____________________________

Signed Date _____________________