Managed IT Services

VOLOGY, INC. TERMS AND CONDITIONS OF SALE

The following are the terms and conditions that govern the purchase and sale of Services by Vology, Inc. (“Vology”) to Customer (the or these “Terms”).  “Customer” means the entity placing a purchase order with Vology, and/or signing and delivering to Vology a Statement of Work (“SOW”) describing the managed and/or professional services, recurring or non-recurring (the “Services”) to be provided by Vology. The delivery to Vology of a purchase order and/or SOW shall be deemed to be (an “Order”).  In the event that Customer and Vology enter into a form of Master Services Agreement or any similar form of Agreement that provides the terms and conditions for the purchase and sale of Services by the Customer from Vology (an “MSA”), then the terms and condition of such MSA shall take precedence over and shall replace of these Terms as between Customer and Vology for the purchase and sale of Services as of effective date of the MSA.  The delivery of an Order by Customer shall be deemed to be the irrevocable acceptance of and agreement to these Terms by Customer for such Order.  These Terms supersede and replace any pre-printed or other commercial terms and conditions set forth on or in the Order.  Vology reserves the right to change these Terms from time to time.  In such event, Vology shall place a notification on its website that these Terms have changed or place such notification in Customer invoices or other written communications with the Customer, and in both cases directing the Customer to review the revised Terms.  The Terms in effect as of the date of Vology acceptance of any Order shall be the Terms that govern the performance of that Order by Vology and Customer.  Each of Customer and Vology is a “Party” and collectively, the “Parties”.

  1. Vology shall provide certain Services for Customer as described in a Statement of Work (“SOW“) provided to the Customer.  Additional SOWs for additional Services may be provided and signed by both Parties from time to time.  These Terms are incorporated in and form a part of the SOW and the SOW shall be governed by these Terms. In the event of any conflict or ambiguity as between these Terms and the terms of any SOW, the SOW shall control.
  2. Payment Terms. All Services shall be performed for the rates set forth in the applicable SOW.   Unless otherwise agreed by the Parties in a SOW, Customer shall pay to Vology all invoiced amounts within thirty (30) days of receipt of Vology’s invoice.   To the extent set forth in a SOW, Vology shall be entitled to certain per diem expenses including, but not limited to reimbursement of expenses for travel, housing, and meals.  In addition to other remedies available to Vology, overdue invoices may be assessed a late payment charge at the rate of one percent (1%) per month commencing on the 31st day after the invoice date, but in no event in excess of the lawful maximum rate.  In the event an undisputed invoice remains unpaid more than thirty (30) days past its due date, Vology may suspend performance of Services until such invoice is paid.  If Vology issues a credit memo or credit note (a “Credit”) to Customer, such Credit shall be applied in full by Customer against future invoiced amounts within one hundred eighty (180) days from the date of issue of the Credit.  The amount of any Credit not applied by Customer within the foregoing period shall be deemed to be forfeited.
  3. Change Order Procedures.
    • Requirement of Change Orders. All changes, modifications, and additions to the obligations of Vology under any SOW shall require a written change order (a “Change Order“) in the form as agreed by the Parties. Either Party may initiate a Change Order by submitting a written request for a Change Order to the other Party along with an explanation of reasons as to why such change, modification, or addition is desirable or necessary.
  • Change Order Contents. All Change Orders must contain:
    • a description of any additional or reduced Services to be performed and/or changes to the performance required of either Party, including the estimated additional or reduced number of personnel needed for such performance;
    • a description of any additional, reduced, or different Services to be rendered;
    • a statement of the impact of the additional Services, or changes to the Services, schedule, costs or other requirements of the applicable SOW; and
    • the signatures of duly authorized individuals of each Party.
  • Acceptance or Rejection of Change Order. Within ten (10) business days of the submission of a Change Order request from one Party to the other, the receiving Party shall notify the other Party of its acceptance or its rejection. Either Party may, in its sole discretion, reject any Change Order requested by the other Party.  However, if Vology requests a Change Order in order to fix any deficiencies in Customer’s infrastructure necessary to allow Vology to successfully provide its Services under any SOW, then Customer must accept that Change Order or Vology’s obligations to Customer under the applicable SOWs shall terminate upon rejection of the Vology proposed Change Order. With respect to any SOW whereunder Vology shall provide managed services for a Customer voice and/or data network (“Managed Services“), any Customer-proposed Change Order containing a dollar amount reduction which exceeds ten percent (10%) of the monthly fees pursuant to that SOW shall be rejected by Vology unless Customer provides reasonable cause, in Vology’s sole discretion, for that requested reduction. Notwithstanding anything in these Terms to the contrary, in no event shall a rejecting Party be responsible for any damages suffered by the initiating Party as a result of the refusal to accept a Change Order request.  Once accepted, the terms of such Change Order shall be deemed to be incorporated into the applicable SOW.
  1. Vology’s Obligations.
    • Warranties. Vology warrants that the Services provided will be performed in conformance with the Services description of the applicable SOW in accordance with industry standards by competent and appropriately trained and qualified personnel.  Vology does not warrant uninterrupted or error-free operation of any Customer or third party equipment that are within the scope of any Services. The Services are not designed nor intended to be used to manage, monitor or control any devices requiring fail-safe operation where the failure of the devices or the Services could lead to death, personal injury or environmental damage.
    • VOLOGY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY WITH RESPECT TO THE USE OF THE SERVICES IN HIGH RISK ACTIVITIES. THE WARRANTY STATED HEREIN IS THE ONLY WARRANTY WITH RESPECT TO THE SUBJECT MATTER HEREOF AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED.
    • Personnel Matters. Vology shall cause its employees and/or its consultants physically located at the Customer’s facilities to comply with all reasonable work place standards and policies applicable to the Customer’s employees including, without limitation, dress, safety, security and access to the facility and the network, site rules, use of telephone systems, electronic mail, and computer systems. If Customer reasonably determines that any of Vology’s employees and/or its consultants who are performing Services at a Customer facility either do not meet the requirements of the warranty of Section 4(a) above, or fail to comply with the Customer rules and policies for onsite personnel, then Customer may request such employee’s and/or consultant’s removal in writing to Vology specifically listing the reasons for such request. If Customer’s request is deemed reasonable in the discretion of Vology, then Vology agrees to promptly remove from the performance of Services any such employees and/or consultants and to replace such employees and/or consultants with individuals that Vology believes meet such requirements.
  2. Customer’s Obligations. Customer shall, at no cost to Vology, provide  in a reasonably prompt manner, (i) all data and information in the possession of Customer as may be required by Vology to perform the Services under these Terms; (ii) access to the Customer networks and work site so that Vology personnel may perform the Services under these Terms without interference; (iii) a person to act as Customer’s representative, who shall transmit instructions, receive information, and interpret and define Customer’s policies and decisions with respect to the Services under these Terms; (iv) prompt notice to Vology should Customer observe or otherwise become aware of any deficiency in the Services provided by Vology; (v) if the Services do not include backup and maintenance of backup data, perform periodic backups and maintain backup data as necessary to restore critical Customer data files in the event of loss or damage to such data from any cause, and (vi) any other additional services as may be set forth in any SOW or reasonably requested and required by Vology with respect to the performance of the Services.
  3. Protection of Confidential Information. In the event that either Party receives properly marked proprietary or confidential information relating to products, services, technology, processes, secrets, or ideas, (“Confidential Information“), of the other Party, the Party receiving such information shall maintain the Confidential Information, in whole or in part, as proprietary and confidential, protecting the Confidential Information from disclosure or copying except as may be expressly authorized herein, in a SOW, or agreed upon by the Parties in writing.  Confidential Information shall only be used for the purposes contemplated by these Terms.  In the event the Parties have executed a separate form of Confidentiality Agreement; the terms of such Confidentiality Agreement shall control. Confidential Information does not mean any information which (i) was in the prior possession of the receiving Party without restriction on use being specified by a third party; (ii) developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party; (iii) is or becomes available from a public source on or after such receipt from the disclosing Party; or (iv) is obtained by the receiving Party from a third party not under any obligation of confidentiality or other restriction with respect to use, subsequent to receiving it from the disclosing Party.
  4. Ownership of Property. All drawings, specifications, software, documents, manuals, materials, devices, servers, equipment and all other forms of tangible and intangible property, whether existing prior to or developed by Vology in the course of performance of the Services and furnished to Customer by Vology hereunder, shall remain the  property of Vology or its licensors as applicable and shall be used by Customer for the sole purpose of the Services, and shall be promptly returned upon the expiration or termination of the term of the applicable SOW or as otherwise directed by Vology.
  5. Non-Solicitation. During the Term of each SOW and for a period of one (1) year after completion of all Services under all SOWs, Customer shall not directly or indirectly solicit for employment or hire or engage as a consultant, agent or independent contractor, any employee of Vology who was working in connection with any SOW hereunder, without Vology’s prior written consent. For purposes of the foregoing, a person is deemed to be an employee of Vology during the term of employment and for ninety (90) days thereafter.  In the event of a breach of this obligation, Customer shall promptly pay to Vology, as liquidated damages and not as a penalty, an amount equal to such employee’s most recent total annual compensation determined as of the date of the breach.
  6. Indemnification. Each Party (the “Indemnifying Party”) shall defend and indemnify the other Party (the “Other Party”) from and against all third party claims, and resulting damages, liabilities, awards, judgments, and settlements against the Other Party, of whatever nature, for damage to tangible property and bodily injury (including death), arising out of the Indemnifying Party’s negligence or intentional misconduct hereunder. The Indemnifying Party’s obligations under this Section 9 shall not extend to liabilities of the Other Party which arise out of the Other Party’s negligence or intentional misconduct. The Other Party shall give the Indemnifying Party prompt, written notice of any suit or other proceeding instituted against it for which it may wish to seek indemnification hereunder.  The Other Party shall reasonably cooperate and assist the Indemnifying Party in the defense of the claim.
  7. Limitation of Liability. EXCEPT FOR A BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, EMPLOYEES OR AGENTS, BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS, USE OF DATA, OR FOR INTERRUPTION OF BUSINESS, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO CUSTOMER’S DATA, PROGRAMS, OR SERVICES) REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, OR STRICT LIABILITY. IN NO EVENT SHALL VOLOGY’S AGGREGATE, CUMULATIVE MONETARY LIABILITY FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY AND NEGLIGENCE), EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO VOLOGY UNDER THE RELEVANT SOW FOR SERVICES DIRECTLY RELATED TO THE SPECIFIC CLAIM DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO VOLOGY’S RECEIPT OF WRITTEN NOTICE OF A CLAIM.
  8. Third-Party Products. Customer acknowledges that certain third party hardware and software products (“Third Party Products”) may be provided by Vology as a “pass through” to Customer and such Third Party Products may be covered by a warranty offered by the third party hardware or software vendor, not Vology.  Any Third Party Products comprising software and which are supplied with a packaged end user license agreement or a click-on license agreement (collectively, “EULAs“) included within such third party software are licensed under and are subject to the terms of such EULAs, and are not subject to any Vology warranties or indemnification obligations contained in Sections 4 and 9 hereof.  Customer shall look solely to the Third Party Products vendor for warranty support.  Customer shall be responsible for the acknowledgement of and compliance with the terms and conditions of all EULAs that accompany the provision of software Third Party Products.
  9. Record Keeping; Restricted Data. If requested in writing by Customer, Vology shall maintain records of its performance of Services hereunder for the time period specified in the request (not to exceed 2 years), and make such records available to Customer within 10 business days of such request.   Each Party agrees to inform the other of any information made available to the other that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the U.S. government, and shall return all such material upon request.
  10. Independent Contractor. Each Party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other Party for any purpose.  Except as provided in these Terms, neither Party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
  11. Vology reserves the right to subcontract with other individuals and businesses for the provision of Services required to be performed pursuant to any SOW. Vology shall be responsible for all payments to, as well as the direction and control of the Services to be performed by its subcontractors, if any.
  12. Term and Termination.
    • Term. These Terms will become effective upon commencement of the Initial Term, as defined in the SOW, and will continue in full force and effect until terminated by either party pursuant to the termination provisions contained therein. These Terms and each SOW shall automatically renew for successive one (1) year periods unless either party unless gives the other party written notice of its intent to terminate not less than ninety (90) days’ prior to the expiration of the then-current term.  Notwithstanding the expiration or termination of a SOW, these Terms will remain in full force and effect and shall apply to all Orders accepted by Vology.
    • Termination for Bankruptcy. In the event that either Party (i) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; or (iii) makes an assignment for the benefit of all or substantially all of its creditors, then the other Party may, by giving written notice of termination to the first Party, terminate any and all Orders hereunder as of a date specified in such notice of termination; provided, however, that Vology shall not have the right to exercise such termination so long as Customer pays for the Services in advance on a month-to-month basis by certified bank check or other method as agreed by Vology.
    • Termination for Cause. In addition to the termination rights set forth above in subsection (b), either Party may terminate any Order upon written notice for the breach by the other Party of any material term hereunder, if such breach is not cured within thirty (30) days following receipt of written notice of breach from the non-breaching Party.  Termination shall be in addition to any other remedies that may be available to the non-breaching Party. Upon termination for cause by either Party, or termination under subsection (b) by either Party, Customer shall pay for all Services performed through the effective date of termination.
    • Survival of Terms. Sections 2, 4(b), 6, 7, 8, 10, 15(d), 20, 21, and 23 shall survive any termination or expiration of an Order.  Except for a termination by Vology pursuant to Sections 15(b) or 15(c) above, upon expiration or termination of an Order, any existing and uncompleted SOW thereunder will be honored by Vology, and these Terms shall be deemed to be extended solely for such SOW for a period of time not to exceed the then-current term of the SOW.  In the event of any termination or expiration of any Order hereunder, Customer shall pay all charges that have accrued as of the effective date of such termination or expiration.
  13. Neither Party may assign these Terms or any Order, in whole or in part, without the express written consent of the other Party, with the exception of an assignment carried out as part of a merger, restructuring, or reorganization, or pursuant to a sale or transfer of all or substantially all of a Party’s assets or stock, other than any such transaction that is within the scope of Section 15(b) above.
  14. No provisions in either Party’s invoices or purchase orders, or in any other business forms employed by either Party, will supersede or add to these Terms, and no supplement, modification or amendment of these Terms, or any SOW, shall be binding, unless executed in writing by a duly authorized representative of each Party.
  15. Force Majeure. Neither Party will be liable to the other Party when and to the extent its failure to perform is due to unforeseen circumstances or causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of foreign or domestic terrorism, riot, embargoes, acts of civil or military authorities, fire, hurricanes and other weather conditions, flood, and, provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the nonperforming Party through the use of alternate sources, work around plans or other means.
  16. Complete Agreement. These Terms, together with all SOWs, constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous negotiations, agreements or understandings, whether written or oral. There are no agreements, understandings, representations or warranties not expressly incorporated herein or in an SOW.
  17. Governing Law; Exclusive Jurisdiction and Venue. These Terms, their construction and enforcement shall be governed by the laws of the State of Florida, without giving effect to its conflict of law principles.  Each of the Parties submits to the exclusive jurisdiction of the United States District Court for the Middle District of Florida (Tampa Division) or of any Florida state court sitting in Hillsborough County for purposes of all legal proceedings arising out of or relating to these Terms and the transactions contemplated hereby. Each of the Parties irrevocably waives, to the fullest extent permitted by law, any objection which they may have now or hereafter laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
  18. Waiver of Jury Trial. Each of the Parties hereto hereby knowingly, voluntarily, and intentionally waives the right such Party may have to a trial by jury in respect of any litigation based hereon or arising out of, under, or in connection with these Terms or any SOW. This provision is a material inducement for the Parties entering into an Order.
  19. All notices (other than notices of a technical or operational nature required in the ordinary course) shall be in writing and will be given in person, or via email or facsimile, or by certified or registered mail, or by overnight courier, to the addresses of the Parties set forth in the Order to the attention of attention of President.
  20. In the event of a dispute arising under these Terms or any SOW, neither Party shall bring a claim or action regardless of the form more than one (1) year after the cause of action has arisen.  In the case of nonpayment by Customer, Vology may not bring a claim or action more than two (2) years after the payment in question was due.