1.0 Agreement. These Terms of Service constitute an agreement (the “Agreement”) which, when combined with the provisions of any estimate, quotation, invoice or purchase order that incorporates this Agreement by reference, contains all of the terms and conditions between TechSitters, Inc. (“we,” “us,” “our” or “TechSitters”) and the user (“you”, “user”, “Client” or “Customer”) (collectively, the “Parties”) and governs the use of all services provided by TechSitters to you (collectively, the “Services”) and any and all devices, including without limitation network equipment and Internet protocol (“IP”) devices, (collectively, the “Equipment”) that may be used in conjunction with the Services. By enrolling in, activating, using, and/or paying for any of the Services, you acknowledge and agree that you have read and understood, and that you hereby agree to, all of the terms and conditions of this Agreement, and that you represent to us that you are of legal age to enter this Agreement and become bound by its terms. You understand and agree that this Agreement is a legally binding agreement equivalent to a signed, written contract. You will use the Services only in compliance with any and all applicable laws, rules, and regulations and in accordance with this Agreement.
2.0 Term; Cancellation.
2.1 Initial Term; Renewal. Except as may be otherwise expressly set forth in this Agreement, the term of this Agreement shall be the same as the term of the Services as stated in the quotation, invoice, or purchase order into which this Agreement is incorporated by reference (the “Initial Term”), provided, however, that the term of such Services and the term of this Agreement shall each automatically renew for additional consecutive periods of twelve (12) months each unless either: (a) you provide TechSitters with written notice of non-renewal at least thirty (30) days prior to the scheduled expiration date of the Initial Term or at least thirty (30) days prior to the scheduled expiration of any then-current renewal period, as applicable; or (b) TechSitters provides you with written notice of non-renewal at least thirty (30) days prior to the scheduled expiration date of the Initial Term or at least thirty (30) days prior to the scheduled expiration date of any then-current renewal period.
2.2 Cancellation by You. You may cancel the Services upon written notice to TechSitters if, and only if, at least thirty (30) business days prior to the effective date of such cancellation you pay to TechSitters the sum of the following: (a) any and all charges previously billed to you by TechSitters which have not yet been paid; (b) any and all charges for the period prior to such cancellation notice which have not yet been billed by TechSitters (which amounts TechSitters will provide to you after receipt of your notice of cancellation); and (c) all fees, charges, and other payments that would have been payable by you under this Agreement from the effective date of such cancellation through the then-scheduled expiration date of this Agreement, had you not cancelled this Agreement.
2.3 Cancellation by TechSitters. TechSitters reserves the right to terminate the Services and/or this Agreement at any time with or without notice to you and for any reason or for no reason. You agree that TechSitters shall not be liable to you or to any other person or entity as a result, direct or indirect, of any modification, suspension, or discontinuance of the Service.
3.0 Use of Services and Equipment.
3.1 You understand that the services and/or equipment provided to you by TechSitters are for your use only. TechSitters reserves the right to immediately terminate or modify any Service if TechSitters determines, in its sole discretion, that such Service is being used for illegal or prohibited activities. Any and all modifications of these terms require written authorization from TechSitters, Inc.
3.2 Fees for Unauthorized Use. We reserve the right to take any and all actions we may deem appropriate with respect to any unauthorized use, including, without limitation: (a) terminating this Agreement and any and all Services and use of Equipment immediately; (b) taking action to recover the costs and expenses of identifying offenders and terminating their use of the Services; and (c) charging you cancellation penalties for any and all unauthorized use of any Service. Additionally, TechSitters reserves all rights and remedies available to it with respect to such activities.
3.3 Lawful Use. You will not use any Service for any purpose that is unlawful, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, or threatening, or in any other way that would violate any applicable law, rule, or regulation or create a basis for civil liability.
3.4 No Re-sales. You will not sell or re-sell, or offer for sale or re-sale, any Service or Equipment or any part thereof without written consent from TechSitters.
3.5 Domestic Use. TechSitters offers Services only to persons and entities located in the United States. We do not represent that the use of the Services and/or the Equipment complies with the laws of any country or territory outside of the United States. If you choose to use any Service from outside the United States, you are responsible for compliance with any and all governing applicable foreign laws, rules, and regulations.
3.6 Liability for All Use. You are responsible for ALL calls (INCLUDING TOLL FRAUD) originating from your SIP trunk and/or VoIP telephone service(s) provided by TechSitters. You acknowledge that you have taken proper steps to secure your communications equipment, network, and related devices from unauthorized use. You acknowledge that any and all use, including unauthorized use of your service(s) will be billed to you, and you acknowledge that you will be financially responsible for all calls originating from your SIP trunk and/or VoIP telephone service(s). It is important that you are aware of the risk of unprotected communications equipment. Unprotected communications equipment can result in tens of thousands of dollars worth of calls in a very short period of time and is often exploited by ‘hackers’ from around the world. Please contact TechSitters with any questions related to toll fraud.
3.7 Fair Use. You acknowledge that automated dialers, continuous off-net forwarding, fax or voice broadcasting, charitable or political solicitation or polling, excessive short duration calls of six seconds or less, and similar activities are prohibited without written the written consent from TechSitters. These prohibited uses may be charged a one cent per minute surcharge in addition to applicable rates.
4.0 Intellectual Property; Privacy.
4.1 Intellectual Property. You acknowledge and agree that all text, graphics, editorial content, data, formatting, graphs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content, along with the configuration parameters used by us in connection with the provision of Services, comprise intellectual property and/or confidential information belonging to TechSitters and/or its licensors, regardless of the form of media in which the same is embodied (collectively, the “Intellectual Property”). You agree that you shall not, directly or indirectly, assist any other person or entity to copy, download, use, redesign, reconfigure or re-transmit any Intellectual Property without TechSitters’ prior, express, written permission in each instance, and that you shall not, directly or indirectly, assist any other person or entity to reverse engineer, distribute, publish, display, modify, or in any way use any Intellectual Property other than in accordance with this Agreement. Except as provided otherwise by law, you have no property rights to any information, credentials, phone number, or other identifier (“Identifier”) that we, our agents, or manufacturers of the Equipment have provisioned for use with the Services or Equipment, and you agree we may change any such Identifier at any time with or without prior notice to you. In the event we are required by law or otherwise to transfer any Identifier to you on termination of this Agreement, we may charge you a reasonable fee in connection therewith. We reserve the right to refuse porting or transfer of any Identifier provisioned by us. You acknowledge and agree that any and all Equipment, software, and/or firmware provided by us to you for use in connection with the Services is so provided exclusively for your use in connection with the Service and is the sole property of TechSitters and/or its licensors. You agree not to perform a factory reset of any item of Equipment. In addition, the Services include material protected by the domestic and international laws of copyright, patents or other proprietary rights and laws. Any use of such materials, other than as expressly authorized herein, is expressly prohibited without the prior, express, written permission of TechSitters and/or such licensor in each instance.
You acknowledge that all Services INCLUDING 911 EMERGENCY SERVICES will fail to function in the event of any one or more of the following, and that none of the Services will return to functionality until such condition is corrected: (a) a failure of electrical power at your location; (b) a failure of electrical power at any source from which your location and/or the Services receives electrical power; and (c) an interruption, suspension, or cancellation of the services provided to you by your Internet or VoIP service provider, to the extent such services operate in connection with the Services. You agree to continue to make all payments for Services and Equipment, notwithstanding any of the foregoing circumstances.
6.0 Confidential Information.
6.1 Definition. The term “Confidential Information” shall mean: (i) any and all information which is disclosed by either party (“Owner”) to the other (“Recipient”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of this Agreement and any proposals or other documents that preceded this Agreement. Confidential Information may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, Customer lists, employee information, financial information, confidential information concerning Owner’s business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
6.2 Treatment of Confidential Information. Owner’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business “need to know”. Customer shall protect the deliverables resulting from Services with the same degree of care. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure.
6.3 Confidentiality and Disclosure of Patient Information. Healthcare Customers Only: TechSitters does not expect to have access to confidential individually identifiable health information (“IIHI”), as that term is used in the Health Insurance Portability and Accountability Act (“HIPAA”) in connection with its fundraising database analytical services. Because TechSitters does have many healthcare Customers and may inadvertently receive IIHI, it is TechSitters’ policy that it will: (i) treat all donor information in compliance with all applicable federal and state laws; and (ii) implement and use any and all reasonable means and appropriate safeguards to prevent the use or disclosure of IIHI and will immediately notify Customer of any unauthorized use or disclosure of IIHI.
7.0 Professional Services
7.1 Services provided by TechSitters. TechSitters shall provide Customer certain services (“Services”) specified in a properly executed quotation (“estimate”, “proposal”, “quote”, or “quotation”) or estimate to be incorporated herein and made a part hereof. Each quotation shall incorporate the terms and provisions of this Agreement. To the extent a quotation provides additional and/or conflicting terms to this Agreement, the terms of the quotation shall prevail. All TechSitters subcontractors under a quotation, if any, shall be bound to perform all obligations under this Agreement as if they were being performed by TechSitters.
7.2 Customer Duties. (a) Customer shall perform such duties and tasks designated in an quotation to facilitate TechSitters’ performance of the Services outlined thereunder and provide TechSitters with reasonable and necessary access to Customer’s facilities during Customer’s normal business hours and otherwise as reasonably requested by TechSitters in order to facilitate TechSitters’ performance of the Services outlined in each quotation. (b) Customer shall not contract for related services with any current or former TechSitters employees or subcontractors for a period of six (6) months from the date agreement or employment relationship with TechSitters terminated. Failure to comply with this provision may at TechSitters’ sole discretion result in (i) removal of all existing consultant resources from Customer sites and/or (ii) the immediate termination of this Agreement and TechSitters’ obligation to provide any further Services.
7.3 Fees, Expenses, & Payment. For all Services performed under an quotation or other request for Services that references this Agreement, Customer shall: (i) pay TechSitters in accordance with each quotation or at the then current TechSitters standard rates, whichever are applicable; (ii) reimburse TechSitters for all reasonable and necessary travel and living expenses TechSitters incurs performing such Services, provided such expenses are incurred in compliance with TechSitters’ travel and expense policy, and provided further that such expenses are incurred pursuant to an applicable quotation or other request for Services by Customer; and (iii) pay TechSitters upon receipt of each invoice. All payments pursuant to this Agreement are non-refundable. Unless Customer provides TechSitters with a valid tax exemption or direct pay certificate upon execution of this Agreement, Customer is responsible for all taxes, duties, and customs fees which may be assessed on the amounts paid for Services performed hereunder, excluding taxes based on TechSitters’ income or payroll.
7.4 Insurance. TechSitters shall maintain statutory minimum Worker’s Compensation and Employer’s Liability Insurance as required by the laws of any state or country in which Services are performed.
7.5 Rights to Work Product. Any expression or result of TechSitters’ Services, or the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software, and other technical information (collectively “Work Product”) created by TechSitters in the course of performing the Services hereunder are the property of TechSitters and are licensed to Customer, without further license fees, pursuant to the TechSitters software license(s) to which the consultation Services pertain, provided, however, to the extent such Work Product provided to Customer by TechSitters contains Customer’s Confidential Information, Customer shall retain title to such Confidential Information. Customer shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.
7.6 Maintenance of Development Work. Standard maintenance and support services offered by TechSitters do not cover any customized software or new development created under an quotation. If available, maintenance and support may be addressed under a separate services agreement.
7.7 Independent Contractor Status. TechSitters performs this Agreement as an independent contractor, not as an employee of Customer. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between Customer and TechSitters.
7.8 Termination of Professional Service. Unless otherwise agreed to, either party may terminate this Agreement or any quotation at any time by giving the other party written notice of termination. If this Agreement or a quotation is terminated by the Customer, Customer shall pay TechSitters for all work performed and for all expenses incurred prior to the effective date of termination. Customer shall also pay a termination fee equal to 100% of the total amount contracted for the professional service under the applicable quotation.
7.9 Postponement of Professional Service. No penalty will be assessed if Customer postpones a scheduled professional service at least 20 business days or more before the start of the scheduled professional service. If Customer postpones a scheduled professional service at least six (6) but less than twenty (20) business days before the start of the scheduled professional service, a penalty of 25% of the amount of the scheduled professional service may be assessed. If Customer postpones a scheduled professional service less than six (6) business days before the start of the scheduled professional service, a penalty up to 100% of the scheduled service may be assessed.
7.10 Separate Agreements. All Services provided herein are acquired separately from any software licenses agreed to between the Parties. Specifically, Customer may acquire software licenses without acquiring consulting services. Customer understands and agrees that this Agreement and any quotation is a separate and independent contractual obligation from any schedule relating to software licenses. Customer shall not withhold payments that are due and payable under this Agreement because of the status of any software licenses or schedules, nor shall Customer withhold payments that are due and payable relating to software licenses or schedules because of the status of work performed hereunder. In addition, the ability to provide such services are not exclusive or specific to TechSitters and are commercially available from a variety of third party TechSitters.
7.11 Standard service rate is $225 USD per hour for all scheduled services provided by TechSitters performed during the times of 9:00am to 5:00pm Eastern time Monday through Friday. All unscheduled service engagements as well as all after hours service engagements will be billed at 1 and 1/2 the standard service rate. All time is billed in 30 minute increments. Travel for on-site is billed at 1/2 the standard rate plus travel expenses. Hourly rates do not include travel expenses which will be billed in addition to the hourly rate.
7.12 Support tickets must be submitted via the TechSitters ticketing system for accurate tracking and routing. All non-emergency tickets will be responded to within 24 business hours. When calling TechSitters support, please have your ticket number available and ensure that you have allowed our team adequate time to respond to your request.
8.1 Method of Payment. Payment for Services, and any and all applicable taxes and other charges, are billed on a pre-pay monthly basis. Monthly periods are defined as approximately thirty (30) day periods beginning on the same date as the then current term of the Services. You must provide a valid credit card or automatic cash handling (ACH) form at the time you sign up for the Services. You agree to maintain a valid and current credit card or ACH form on file with TechSitters at all times. Additional charges, including, but not limited to, usage, additional features and services beyond those included in your Services will be billed at the end of or subsequent to the monthly period in which such charges are incurred. Unpaid balances for additional charges exceeding US$50.00 will be billed and become payable immediately. If charges to your credit card are declined for any reason, TechSitters reserves the right to suspend or terminate any or all Services until you provide a valid method of payment. Suspension or termination of your Services does not relieve you of your obligation and liability to pay all accrued charges and fees, and all costs of TechSitters associated with the collection of any past-due payment and unbilled charges for Services provided. You must notify TechSitters in writing, at the address set forth in Section 10 of this Agreement, within seven (7) days after receiving your credit card statement if you dispute any TechSitters charges on that statement. We will respond to your dispute in writing, within ninety (90) days after receipt of your written notice.
8.2 Refunds. In certain cases, TechSitters may determine, in its sole discretion, that a full or partial refund should be issued to you. Refunds may take up to 120 days to appear on your account, and may, in TechSitters’ sole discretion, be issued in the form of: (a) a credit toward the next month’s Services; (b) a credit issued to your credit card on file with us; and/or (c) a check issued to you via U.S. Mail.
8.3 Information Provided by Users. You are responsible for providing accurate, timely, and complete information to us in connection with your registration for and use of the Services. TechSitters is not responsible for any claims relating to any inaccurate, untimely, or incomplete information provided by you to us.
8.4 Billing and Payment Policy. You hereby agree to pay for all Services in accordance with this Agreement. TechSitters will charge your credit card accordingly for all amounts due to be paid by you pursuant to this Agreement. No additional notice or consent will be required for billings to your credit card for all amounts due under this Agreement, including within limitation late charges, Replacement Fees, and payments in connection with your cancellation of the Services. You agree to promptly notify us, in the manner set forth in Section 10 of this Agreement, of any change in your invoicing address and/or changes related to the credit card used for payment. Your payment obligations shall survive any expiration or cancellation of the Services and/or this Agreement. While TechSitters will use its commercially reasonable best efforts to ensure the privacy of all credit card and other personal information you provide to us, we expressly disclaim, and you hereby release us from, any and all liability for any damage that may result should any such information be released to any third parties. TechSitters will use a third party credit processor to process your credit card information. You acknowledge and agree that TechSitters is not responsible for any of the services offered by any such third party credit card processor.
8.5 Late Payments/Disputes. For any payment returned for nonpayment or for any credit card charge-backs, you agree to pay TechSitters a fee of Twenty Five Dollars ($25.00) for each such occurrence, which you and we agree is intended as a reasonable estimate of TechSitters’ actual additional costs per such event. Additionally, in such event we may, without notice to you, suspend any or all Services and/or terminate this Agreement, in addition to all other remedies available to us whether pursuant to this Agreement or otherwise. All amounts due, including disputed amounts, must be paid by the due date regardless of the status of any objection. Any outstanding balance beyond the invoice due date will be assessed a late payment penalty equal to the greater of a monthly interest rate of 1.5% of the past due balance or $5.00
8.6 Taxes. State and local governments may assess taxes, surcharges, or fees, or all of these, on your use of our service. These charges may be a flat fee or a percentage of your service charges and may change without notice. These charges are based on the rates applicable to the address you provided to us. You are responsible for all applicable taxes, fees, or charges for your order, use, or payment for our service or your equipment. These amounts are in addition to the payment for your service or equipment. We will bill these charges to your selected payment method.
8.7 Regulatory. You understand that your bill will be accessed a Regulatory fee of approximately 5%. This fee is not a tax and offsets regulatory costs of accessing and remitting contributions to various local, state, and federal entities.
9.1 Theft or Loss of Equipment; Theft of Services. You are solely responsible for all Equipment during the term of this Agreement. You are also solely responsible for canceling your Service if any Equipment is lost or stolen, or if you become aware that any of the Services provided to you are being stolen. Failure to do so may result in additional charges to you.
9.2 Return of Equipment. You acknowledge and agree that all Equipment is and remains the property of TechSitters. You shall return any and all Equipment to TechSitters upon demand by TechSitters, or within seven (7) days after the expiration or cancellation of this Agreement, whichever occurs first. You agree to return any and all Equipment in its original, undamaged, and fully-operational condition, with all original packaging, documentation, and accessory materials, and with no stickers, writing, or marks other than those present when you received such Equipment from TechSitters. You agree to pay to TechSitters for any and all repair, replacement, and/or refurbishment costs resulting from your failure to return Equipment in such condition. You must write the Return Merchandise Authorization (“RMA”) number assigned to you by TechSitters on the outside of the box in which you deliver any Equipment to us. The box which encloses any Equipment you deliver to us must be packed inside another cardboard shipping box and otherwise packaged with reasonable care. You must return any and all Equipment to the address of TechSitters set forth in Section 10 of this Agreement. In the event that you fail to perform any of your obligations under this Section 9.2, you agree to pay TechSitters’ actual damages as a result of such failure, which amount TechSitters may charge to the credit card on file for your account.
9.3 Equipment Replacement. In certain cases, TechSitters may determine that replacement Equipment must be issued to you. In such case, we may require a deposit (a “Replacement Deposit”) equivalent to the value of the Equipment to be replaced. Your credit card will be charged for the amount of the Replacement Deposit before the replacement Equipment is shipped to you. When we receive, in accordance with Section 9.2 of this Agreement, the Equipment being replaced, TechSitters will refund to you the Replacement Deposit. Replacement Equipment may not be issued to you until a Replacement Deposit has been charged to a valid credit card. If you do not return the Equipment being replaced in accordance with all provisions of Section 9.2 of this Agreement, you hereby authorize TechSitters to retain such portion of the Replacement Deposit, up to the full amount of the Replacement Deposit, in payment of TechSitters’ actual damages resulting from your non-compliance with any of the provisions of Section 9.2 of this Agreement.
9.4 Use of Equipment not Supplied by TechSitters. TechSitters may offer certain plans which permit you to use your own equipment in connection with the Services. In such cases, TechSitters expressly disclaims any warranty that all or any features of the Services shall work properly or at all. You are responsible for determining the fitness of any such equipment and its compatibility with the Services.
10.0 Emergency Services / 911
VoIP (Voice over IP) 911 services operate differently from traditional 911. Where available, TechSitters offers Enhanced 911, or E911. E911 registered numbers will provide the address and phone number to the Public Service Answering Point (PSAP) in your county. For E911 to function properly, YOU MUST REGISTER EACH TELEPHONE NUMBER USED AS OUTBOUND CALLER ID FOR 911 SERVICES. Once a number is registered for 911 services, you agree to test this number by calling the provided 911 testing service number BEFORE utilizing your VoIP services. If you move or move your VoIP services to a new physical location, it is your responsibility to update your E911 address and test the 911 services by calling the provided 911 testing service number. If you do not update your physical address, calls to E911 will appear with your old address information resulting in emergency services being dispatched to the incorrect location. It is imperative that you test 911 services by calling the provided 911 testing service number from each communications device utilizing your TechSitters VoIP services. ANY CALL PLACED TO 911 FROM A TELEPHONE NUMBER NOT PREVIOUSLY REGISTERED AND TESTED BY CALLING THE PROVIDED 911 TESTING SERVICE NUMBER WILL BE CHARGED AT A RATE OF $125 PER CALL. An emergency service charge of $1.50 per registered number will be billed to you monthly.
We may send you notices by mail or electronic means, in our sole discretion. Notices to you shall be effective (a) three (3) days following the date deposited in the U.S. Mail or delivered to a nationally recognized courier or delivery service to your address as kept in our files, and/or (b) immediately upon our transmission using an electronic means such as e-mail or text messaging service. You are responsible for notifying us of any changes in your mailing or email address. Written notice to us shall be effective when directed to: TechSitters, Inc. 318 Cove Point Trail., Moneta, VA 24121 and received by us. Your notice must contain specific information adequate to identify you and your Service.
You hereby agree to indemnify, defend, and hold harmless TechSitters, its directors, officers, employees, and authorized agents, and their respective heirs, successors, and assigns (each an “Indemnitee”) from and against any and all claims, losses, expenses, demands, injuries, awards, damages, expenses (including without limitation reasonable attorneys’ fees) arising in connection with any claim by any person or entity (including without limitation any intellectual property claim) relating to any one or more of the following: (a) materials and content that you transmit or allow to be transmitted through use of any of the Services; (b) any information and/or services offered by any parties other than TechSitters in connection with the Services; and (c) any use of the Services in violation of this Agreement and/or any applicable law, rule, or regulation.
13.0 Disclaimer of Warranties.
YOU HEREBY AGREE THAT THE USE OF THE SERVICES AND EQUIPMENT IS AT YOUR SOLE RISK. NEITHER TechSitters NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY OF THE SERVICES OR THE EQUIPMENT, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, SERVICE, OR EQUIPMENT PROVIDED IN CONJUNCTION WITH USE OF ANY OF THE SERVICES. ALL SERVICES AND EQUIPMENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER TechSitters NOR ITS LICENSORS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY, OR COMPLETENESS OF THE INFORMATION APPEARING ON OUR WEB SITE (“THE SITE”) OR THROUGH THE USE OF ANY OF THE SERVICES. TechSitters AND ITS AFFILIATES DO NOT WARRANT THAT THE SITE OR TechSitters’ E-MAIL SYSTEM IS FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
14.0 Limitation of Liability and Damages.
Under no circumstances will TechSitters and/or its Affiliates be liable to any party for any indirect, incidental, consequential, special or exemplary damages arising with respect to any of the Services, Equipment, and/or this Agreement. Furthermore, the aggregate liability of TechSitters with respect to the Services, Equipment, and this Agreement will not exceed the total amounts actually paid by you for the Services during the immediately preceding period of twelve (12) consecutive months.
Any controversy or claim arising out of or relating to this Agreement, the Services, and/or the Equipment shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. Arbitration shall be conducted in the State of Virginia and judgement on the arbitration award may be entered into any court of competent jurisdiction thereof. TechSitters, in its sole discretion, may opt not to have the foregoing provisions of this Section 14 apply to any matter arising with respect to any provision in Section 4 of this Agreement. Notwithstanding the foregoing, any party to this agreement may elect to pursue any claim valued at Ten Thousand Dollars ($10,000.00) or less in the State courts of Virginia, and all parties hereby consent to the jurisdiction of said courts for such disputes.
16.0 General Provisions
Failure by TechSitters to enforce any provision(s) of this Agreement shall not be construed as a waiver by TechSitters of its right to enforce such provision at a later date or to enforce any other provision in this Agreement. This Agreement is and shall be governed by and construed in accordance with the laws of the State of Virginia, without regard to provisions or procedures regarding conflicts of laws. Any legal action properly brought in connection with this Agreement shall be exclusively brought in the federal, state or local courts located in the State of Virginia, and, with regard thereto, you hereby irrevocably: (a) submit to the exercise of personal jurisdiction over you by any such court; and (b) waive any jurisdictional, venue, or inconvenient forum objection to any such court. In the event any legal action or arbitration proceeding is brought under this Agreement, the prevailing party shall be entitled to recover its costs incurred in pursuing the action or proceeding, including, but not limited to, its reasonable attorney’s fees. This Agreement constitutes the entire agreement between you and TechSitters with respect to the subject matter hereof, and supersedes any and all prior agreements or understandings with respect to such subject matter, whether written or oral, between you and TechSitters. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall be enforced to the fullest extent possible and shall remain in full force and effect. This Agreement is binding upon and shall inure to the benefit of you and TechSitters, and your and our respective successors, assigns, and heirs. This Agreement may be modified or updated by TechSitters from time to time. A current copy of this agreement is made available to TechSitters’ customers electronically via the Internet website www.TechSitters.com or electronic transmission including but not limited to email or facsimile.