This Agreement is between Think Technologies and the Client specified on the sales quote of this Agreement. Under the terms of this Agreement, Think Technologies will use diligent efforts to provide Client with Managed Services and other IT support services as described in one or more mutually agreed Schedules (the “Services”). The term “Managed Services” means IT services where Think Technologies undertakes to proactively monitor, manage and maintain certain IT components or services (such as servers, workstations, backup services, e-mail services, hosting services, etc.)
2.1 Plans. The initial scope of Services under this Agreement is described in the attached Plans. The parties may from time to time add to or modify the initial Services by mutual agreement. Services may be added to or modified through an agreed new Plan or through other formal or informal means (such as by means of a verbal or e-mail request, change order, request for additional services through a Think Technologies Client portal, or Client approval of a quote). Think Technologies will use reasonable efforts to confirm any informal requests for additional or modified Services by e-mail or other writing. In all cases, the additional or modified Services will be governed by the terms of this Agreement. The term “Plan” hereunder refers to both a formal Plan and to any informal document or communication that specifies the scope and fees of any Services provided by Think Technologies.
2.2 Services Rights and Compliance. Client’s rights to use the Services are non-exclusive and non-transferable. Client agrees to comply with all applicable federal, state, local and foreign laws, rules and regulations in connection with its use of the Services.
2.3 Restrictions. Client shall not: (1) use or allow use of the Services to provide time-sharing, outsourcing, service bureau, or other IT services to third parties; or (2) reverse engineer, decompile, disassemble, modify or change any portion of software provided to Client by Think Technologies in connection with the Services (“Software”), or attempt to do any of the foregoing. If Client contracts with a 3rd party vendor or provider for products and services also available from Think Technologies, Think Technologies is not required to provide support for the 3rd party products and services.
2.4 Start Date. Think Technologies may specify in the Plan an estimated date for beginning the Services. Any such estimated date is made for project planning purposes only and is not a guarantee; Think Technologies may revise an estimated start date at any time if the assumptions upon which Think Technologies relied in calculating its initial estimate change the scope or magnitude of the Services, or if Client fails to provide required information, assistance, and/or decisions.
2.5 Services Level Agreement. For certain Services, a Services Level Agreement (“SLA”) will apply. Think Technologies will use diligent efforts to meet the service levels, response time targets, and other requirements in an applicable SLA. Changes in technical and business requirements may require improvements and changes by Think Technologies to any SLA hereunder from time to time. Updated copies of Think Technologies’ SLA are available upon request.
2.6 Service Desk. For Managed Services, Think Technologies will maintain a centralized “Service Desk” to manage the reporting and handling of technical issues. Client agrees to report all technical issues to the Service Desk. The Service Desk may be contacted by Client by either logging into Think Technologies’ client portal, sending an email or by calling via telephone, or in other methods as communicated to Client from time to time. The Service Desk operates from 8:00AM-5:00PM (ET) M-F except Think Technologies holidays (“Normal Hours”) for business hours service requests. After-hours Service Desk support will be provided if agreed by the parties as indicated on a Plan. Services outside of Normal Hours and not agreed upon as indicated on a Plan will be billable at our After-hours rate.
2.7 On-Site Services. Certain Services provided by Think Technologies may include the ability for Think Technologies to provide on-site services at no additional charge. Under these Services, Client understands and agrees that Think Technologies will come on-site in its sole discretion only after the issue is unable to be resolved remotely. Client does not have the right to demand that Think Technologies provide on-site services.
Client acknowledges and agrees that Think Technologies may access, connect to and manage Client devices via remote technologies (except where prohibited by law) as part of the Services without first contacting Client. These activities may include, but are not limited to:
Notwithstanding the above, Client is responsible for notifying Think Technologies of a restriction of remote access, connections or management activities related to any managed device.
Client will, at its own cost:
4.1 Cooperate with and assist Think Technologies in the performance of the Services and interact with Think Technologies in a professional and courteous manner.
4.2 Remain solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client data, information, and materials provided to Think Technologies in connection with the Service (“Client Content”). Client grants Think Technologies permission to remove or restrict access to malicious, obscene, indecent or offensive content made available by a network user or over the internet, and shall not hold Think Technologies liable for any action taken to restrict access to material on Client’s network that appear to be in violation of any law, regulation or rights of a third party, including, but not limited to, rights under copyright law and prohibitions on libel, slander and invasion of privacy.
4.3 Provide all necessary information when requesting technical support. This information includes but is not limited to:
For all Managed Services, Client will at its own cost:
5.1 Maintain ample bandwidth and a high-speed Internet connection at the Client site(s) to support the Services. If this is not maintained, Think Technologies will not be obligated to provide the Services and/or may increase fees for the Services to reflect the higher cost of supporting Client.
5.2 Maintain valid warranties/extended support to cover hardware maintenance and repair in the event of failure.
5.3 Maintain valid support contracts for Client application software with the respective third-party vendors. Client will manage the relationship with the third-party vendor as it relates to the delivery of Services.
5.4 Notify Think Technologies upon the removal of a covered device from the network so the Think Technologies’ remote management and monitoring systems can be updated.
5.5 Purchase supplies when deemed necessary, including but not limited to backup appliances, hard drives, and any hardware and software required for the proper function of the customer’s network.
5.6 Provide free, safe and sufficient access to Client’s facilities, including parking, ample working space, electricity, and Internet access when on-site Services are required.
5.7 Maintain Client site conditions within the environmental range of all Client system devices and media as specified by the manufacturer.
5.8 Must include it’s Think Technologies account representatives in Client’s material IT planning and IT decision making meetings in order to facilitate continuity of Services.
5.9 Designate one or more authorized contacts responsible for screening end-user service requests and to determine level of service needed and assignment of requests to Think Technologies.
5.10 Provide assistance to a Think Technologies engineering resource in order to facilitate the resolution of any issue as requested by Think Technologies personnel.
5.11 Customer must maintain cyber insurance of $1,000,000 or more for a data breach involving sensitive customer information of the Client. Upon request, Client must provide a copy of their current cyber insurance policy available for review by Think Technologies.
6.1 Effective Date. The Effective Date of this Agreement is the date of the first invoice which matches the delivered services unless a sales quote expressly provides a different effective date.
6.2 Term. This Agreement is effective beginning the Effective Date and continues for the length of the initial term set forth on the sales quote. After the end of the initial term, this Agreement shall automatically renew for successive renewal terms of equal length as the initial term, unless either party provides written notice of its intent to terminate this Agreement at least thirty (30) days prior to the end of the then-current term. The date of termination based on notice shall be the last day of the then-current term.
6.3 Either party shall have the option within the first thirty (30) days after the Effective Date of this Agreement to terminate the Agreement. Should Client exercise its option within the first thirty (30) days, the Client shall be responsible for repayment of the initial on-boarding fee if previously discounted. Client shall remain responsible for full payment for all services rendered to client through the date of termination, which shall be the last day of the following month after the termination noticed has been received. This provision shall only pertain to a first agreement for services between Think Technologies and Client. The Client cannot exercise this option at any time where this Agreement is a renewal, modified, subsequent or replacement agreement for services between Think Technologies and Client.
6.4 New Services Adjust to Term. If new Services are added to this Agreement, then the term for the Services will begin on the Effective Date of the Plan for such Services and will end on termination of this Agreement.
6.5 Termination for Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after written notice. Think Technologies may suspend the Services upon notice to Client if Client materially breaches this Agreement, including but not limited to by not paying any fees or costs due hereunder that are not disputed in good faith by Client by the due date.
6.6 Termination for Insolvency. Either party may terminate this Agreement if: (i) the other party has a receiver or administrative receiver appointed over its assets; (ii) the other party makes a general assignment for the benefit of creditors; (iii) upon the institution by or against either party of insolvency or bankruptcy proceedings for the settlement of that party’s debts. The sale, merger or acquisition of Client is not a basis for termination under this provision, and instead is subject to the Assignment provision below.
6.7 Liquidated Damages. If Client terminates this Agreement without cause, or if Think Technologies terminates this Agreement due to Client’s material breach, then all base fees unpaid for the remainder of the then-current Term shall become immediately due and payable by Client to Think Technologies as liquidated damages, without any further demand by Think Technologies. The parties acknowledge that Think Technologies’ actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of Think Technologies’ potential losses.
6.8 Sections 7, 8, 10, 11, 12, 13, 14 and 15 of this Agreement shall survive termination or expiration of this Agreement. Termination of this Agreement will not affect any accrued rights or liabilities of either party.thir
7.1 Fees. Client shall pay Think Technologies the fees and other amounts set forth in the Plan. Think Technologies will deliver invoices on the effective date of the Plan to Client for any one-time set up fee. Invoices for any monthly Services fee will be delivered approximately on the first business day of the month and shall be considered delinquent if unpaid within fifteen (15) days of the due date. Invoices for hardware purchases must be paid before Think Technologies purchases such hardware for resale to Client. All professional services labor must be paid at 50% of total estimated price prior to starting Professional Services work.
7.2 Additional Services; Block Time. Client may from time to time request Think Technologies to perform Support Services that are beyond the scope of an agreed Plan. Support Services are defined as services in attempt to resolve an issue with an existing system that is not fully functional or to implement a new system which takes less than four (4) engineering hours. Think Technologies is entitled to rely on requests for additional Support Services made by any Client user, including requests for on-site Services. In order to facilitate work on such additional Services, Client may acquire in advance a block of hours (“Block Time”) to use to pay for such Services.
7.3 Additional Services: Support Services. Client may from time to time request Think Technologies to perform Support Services that are beyond the scope of an agreed Plan. Support Services are defined as services in attempt to resolve an existing system to resolve an issue with an existing system that is not fully functional. Think Technologies is entitled to rely on requests for additional Support Services made by any Client user, including requests for on-site Support Services. In order to facilitate work on such additional Support Services when the customer does not have Block Time previously purchased, Think Technologies may, but is not required to, provide the requested Services and bill Client for such Services at $175.00 per hour during normal business hours and $262.50 for Services outside of normal business hours. This is the Think Technologies “Support Rate.” Think Technologies holds the right to change the above rate per hour without prior notice to Client.
7.4 Additional Services; Professional Services. Client may from time to time request Think Technologies to perform Services that are beyond the scope of an agreed Plan. Think Technologies may, but is not required to, provide the requested Services and bill Client for such Services at $175.00 per hour during normal business hours and $262.50 per hour for Services outside of normal business hours. Think Technologies holds the right to change the above rate per hour without prior notice to Client.
7.5 Terms. Unless otherwise set forth on the Plan, all managed service agreement invoices delivered by Think Technologies will be due upon receipt and paid by either ACH or credit card. All payments under this Agreement shall be made in United States dollars and are non-refundable. All payments not submitted when due will be subject to interest at the rate of twelve (12) percent annually, or the maximum amount allowed by applicable law if lower, calculated from the date when payment becomes overdue until payment is made. Client’s agreement to any Plan constitutes a valid purchase order for the Services associated with that Plan including any additional Services performed related to but outside the scope of that Schedule.
7.6 Taxes. Client agrees to pay all federal, state, local and other taxes based on this Agreement, the Services or its use, excluding taxes based on Think Technologies’ net income. If Client claims tax-exempt status for any purpose in connection with this Agreement, Client represents and warrants that it is a tax-exempt entity and will provide Client upon request with a correct copy of Client’s tax-exempt certification.
7.7 Expenses. Client shall reimburse Think Technologies for all reasonable out-of-pocket expenses incurred by Think Technologies in connection with this Agreement, including but not limited to travel, lodging, meals, and shipping expenses. Travel charges for services completed in Alachua, Marion, Palm Beach, Broward and Dade counties will not be billed provided the client chooses a Plan which provides on-site support within its scope.
7.8 Renewals. Any renewal shall incorporate all standard terms of Think Technologies’ Primary Services Agreement existing at the date of renewal. All fees of Think Technologies set forth in this Agreement are subject to change upon renewal to Think Technologies’ current fees at the date of renewal. Unless Think Technologies adopts a different pricing model, Think Technologies agrees to cap any such increases for the next four (4) years at the greater of 3% per year and the change in the most recent United States Bureau of Labor Statistics Consumer Price Index – All Urban Consumers – all items (1982-84=100) (“CPI Index”).
8.1 Ownership. Client agrees that Think Technologies and its third party licensors own all right, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual property rights, in the Services and the Software (including but not limited to the look and feel, algorithms, documentation format, database structures, methodologies, and know-how associated with the Services and the Software) and any and all copies and Updates. Think Technologies reserves all rights to the Services and the Software not specifically granted herein.
8.2 Software license. Think Technologies and/or third parties may provide software in connection with Service. All such software is licensed to Client subject to the terms and conditions of an end user license agreement (“EULA“) which is typically provided as either a document accompanying such software, or an on-screen dialogue accepted during initial use of such software. Client represents to Think Technologies that it will abide by the terms and conditions of the EULA associated with any software provided to Client with any Services.
8.3 Think Technologies Indemnification. Think Technologies , at its expense, shall defend or at its option settle any action, suit or proceeding brought against Client which alleges that the Services or Software infringes any third party copyright or patent, or misappropriates a third party trade secret, and shall pay damages finally awarded against Client, provided that (i) Client notifies Think Technologies promptly in writing of the claim, (ii) Think Technologies has sole control of the defense and all related settlement negotiations, and (iii) Client provides Think Technologies with commercially reasonable assistance, information and authority to perform the above at Think Technologies ’s expense. The foregoing indemnity shall not apply if the alleged infringement is attributable to the combination of the Services or Software with any services or products not provided by Think Technologies if the alleged infringement would not exist but for such combination, or if the Services or Software is modified by Client, or if the Services or Software is used outside the scope of this Agreement.
8.4 Client Indemnification. Client, at its expense, shall defend or at its option settle any action, suit or proceeding brought against Client which alleges that any Client Content infringes any third party copyright or patent, or misappropriates a third party trade secret, and shall pay damages finally awarded against Think Technologies , provided that (i) Think Technologies notifies Client promptly in writing of the claim, (ii) Client has sole control of the defense and all related settlement negotiations, and (iii) Think Technologies provides Client with commercially reasonable assistance, information and authority to perform the above at Client’s expense.
9.1 Equipment. Client agrees that Think Technologies may in support of the Services deliver certain Think Technologies Equipment to Client and install such Think Technologies Equipment on Client premises. “Think Technologies Equipment” means any equipment provided by Think Technologies to Client including but not limited to network management appliances (NMA), firewall appliances, backup devices, SSL VPN appliances, and continuous data protection (CDP) devices.
9.2 Ownership. The Think Technologies Equipment is and at all times shall remain the sole and exclusive property of Think Technologies and Client agrees they do not become an owner of any Think Technologies Equipment by virtue of the payments provided for in this Agreement. Upon termination of this Agreement, subject to any applicable laws or regulations, Think Technologies may, but shall not be obligated to, retrieve any associated Think Technologies Equipment not returned by Client as required below. Client agrees to pay any expense incurred by Think Technologies in any retrieval of the unreturned Think Technologies Equipment. Think Technologies will not be deemed to have “abandoned” the Think Technologies Equipment if it does not retrieve such equipment.
9.3 Access. Client agrees to provide Think Technologies and its authorized agents access to Client premises during regular business hours upon reasonable notice during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace, alter or disconnect or remove the Think Technologies Equipment, to install associated software, to conduct an audit of the Think Technologies Client agrees to provide Think Technologies with reasonable access to Think Technologies Equipment located within Client premises.
9.4 Upgrades. Think Technologies shall have the right to upgrade, modify and enhance Think Technologies Equipment and associated software from time to time through “downloads” from Think Technologies’ network or otherwise.
9.5 Termination. Client agrees that, if the Agreement is terminated, Client has no right to possess or use the Think Technologies Equipment. Client agrees to arrange for the return of Think Technologies Equipment to Think Technologies, in the same condition as when received (excepting ordinary wear and tear), upon termination of the Agreement. Think Technologies may charge Client a continuing monthly fee until any outstanding Think Technologies Equipment is returned, collected by Think Technologies or fully paid for by Client.
9.6 Loss. Client agrees to pay Think Technologies liquidated damages as reasonably determined by Think Technologies for the replacement cost of the Think Technologies Equipment without any deduction for depreciation, wear and tear or physical condition of such Think Technologies Equipment if (i) Client tampers with, or permit others to tamper with, Think Technologies Equipment, (ii) the Think Technologies Equipment is destroyed, lost, or stolen, whether or not due to circumstances beyond Client’s reasonable control, or (iii) the Think Technologies Equipment is damaged (excluding equipment malfunction through no fault of Client) while in Client possession, whether or not due to circumstances beyond Client’s reasonable control. Client agrees to return any damaged Think Technologies Equipment to Think Technologies. Provided, however, Client shall not be required to pay liquidated damages to Think Technologies if the damage or destruction of the Think Technologies Equipment arises out of the acts or omissions of Think Technologies or its agents, employees or subcontractors.
9.7 Tampering. Client will not, nor will allow others to, open, alter, misuse, tamper with or remove the Think Technologies Equipment as and where installed by Think Technologies or use it contrary to this Agreement. Client will not, nor will allow others to, remove any markings or labels from the Think Technologies Equipment indicating Think Technologies ownership or serial or identity numbers. Client will reasonably safeguard the Think Technologies Equipment from loss or damage of any kind, including accidents, breakage or fire, and will not permit anyone other than an authorized representative of Think Technologies to perform any work on the Think Technologies Equipment. Nothing in this Agreement shall prevent Think Technologies from enforcing any rights it has with respect to theft or unauthorized tampering of Think Technologies Equipment under applicable law.
10.1 Definition. “Confidential Information” means any business or technical information or data that is disclosed by one party to the other party pursuant to this Agreement. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records. The terms of this Agreement (as well as information relating to the negotiation of this Agreement) shall be deemed the Confidential Information of the Parties.
10.2 Confidentiality Obligations. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence; (b) not to, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information, except to its employees who have a need to know such information for the purpose of this Agreement; and (c) to protect the disclosing party’s Confidential Information with the same degree of care that it uses to protect its own Confidential Information, no less than a reasonable standard of care. A receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall inform the other party as soon as practicable, prior to any such required disclosure.
10.3 Remedies. Each party acknowledges and agrees that any violation of this Section may cause such party irreparable injury for which such party would have no adequate remedy at law, and that such party shall be entitled to preliminary and other injunctive relief against the other party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that such party may have at law or in equity.
10.4 Termination. Upon the termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all the Confidential Information
11.1 Limited Warranty. Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder. Think Technologies warrants that the Services will be provided in a professional and workmanlike manner, using personnel that are qualified and experienced. In the event that Client provides notice of a breach of the foregoing warranty within thirty (30) days after the delivery of the Services, Think Technologies will use reasonable commercial efforts to correct the breach at no additional charge.
11.2 Disclaimer. Think Technologies does not warrant that the Services will be provided uninterruptedly or error-free. Think Technologies does not warranty that the Services will prevent cyber-attacks or other data breaches of customer information. Except to the extent set forth in a Plan, Client agrees that it has the sole responsibility for protecting and backing up its data. Except as expressly set forth in this agreement, Think Technologies and its suppliers make no warranties, express or implied, including but not limited to any implied warranties of merchantability; fitness for a particular purpose; or any warranties arising as a result of Client usage in the trade or by course of dealing. Client waives any warranty claim against Think Technologies as to 3rd party products or services Client acquires and Think Technologies disclaims any warranty, express or implied, as to such 3rd party products and services.
12.1 Exclusion of Damages. Client agrees that any liability of Think Technologies or any of its suppliers relating to this Agreement and the Services shall be limited to the amount of fees actually received by Think Technologies from Client under the applicable Plan during the prior three (3) months. Client waives any claim against Think Technologies for liability as a result of a cyber-attack or data breach. In no event shall either party or any of its suppliers be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property or death; or any lost sales, profits or data, even if a party is told that any of such damages may occur. The foregoing limitations of liability shall not apply to property damage, death or personal injury caused by the willful misconduct or gross negligence of a party, or to a party’s obligations under Section 8(c) or Section 10. The fees charged by Think Technologies under this Agreement are calculated with specific reference to the level of liabilities undertaken by Think Technologies hereunder.
12.2 Monitoring Tools. Think Technologies may deploy Think Technologies Equipment or other tools in providing Services to Client in an attempt to minimize down-time and increase awareness to potential IT troubles at Client’s site(s). Such tools may fail, and Think Technologies will not be responsible for any losses due to a) monitoring tools failing to report a problem, b) the failure of the automated notification system, or c) any other failure of the process including the failure of a technician to respond to an issue that has been communicated to them in a manner timely enough to avoid a larger problem.
Client may not assign or otherwise transfer in any way any of the rights and obligations arising out of this Agreement without the prior written consent of Think Technologies. Think Technologies may, in its sole discretion, transfer this Agreement to a third party that agrees to perform under the Agreement and to be bound by the rights and obligations under the Agreement, so long as Think Technologies provides notice to the Client within five (5) days of the assignment. Notwithstanding any other provision, the merger, acquisition or sale of all or substantially all of Client’s business or of the portion thereof to which this Agreement relates shall result in the automatic assignment of this Agreement unless Think Technologies, in its sole discretion, objects to such an assignment. Any assignee of this Agreement, including by virtue of an assignment associated with a merger, acquisition or sale, shall be bound by all terms of this Agreement, including those related to the remaining Term and payment obligations.
14.1 Negotiation. Each party shall attempt in good faith to resolve any controversy, claim or dispute of whatever nature arising out of or relating to this Agreement (“Dispute“) promptly by negotiation between executives or managers who have authority to settle the Dispute and who are at a higher level of management within each of the parties’ organizations than the parties’ appointed project managers. Each party shall provide the other with all information and documentation relied upon by the party to substantiate its position with respect to the Dispute.
14.2 Mediation. If the Dispute has not been resolved through negotiation within thirty (30) business days of the initiation thereof, the parties shall make a good faith attempt to settle the Dispute by mediation conducted by a mutually agreeable mediator in a mutually agreed upon location.
15.1 Security Interest. Client hereby grants to Think Technologies a security interest in any and all hardware and other items purchased by Client from Think Technologies (“Deliverables”), until such time as those Deliverables are paid in full by the Client, in order to secure Clients’ obligations to Think Technologies. Client agrees that in the event of default in any payment, Think Technologies shall have, in addition to its rights under applicable law, the right to immediately repossess any and all Deliverables previously sold to Client, but not fully paid for by Client, without further operation of law and without notice to Client. Client further agrees to pay for any and all costs, including attorney’s fees, engineering fees and other applicable costs which Think Technologies incurs as a result of said repossession. Client further agrees to execute any additional documents, at Client’s expense, to perfect or continue the security interest created by this Agreement.
15.2 Publicity. Think Technologies may include Client’s name in a list of Think Technologies clients and as a user of the Services.
15.3 Independent Contractors. The parties are independent contractors, and nothing in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between Think Technologies and Client.
15.4 Non-Solicitation. Client agrees to neither directly nor indirectly solicit, hire or retain, nor cause to be solicited, hired or retained as an employee or independent contractor, any Think Technologies employee or former employee employed by Think Technologies in a technical or sales position at any time during the term of this Agreement and for a period of one (1) year following termination of this Agreement. Client agrees that if Client wishes to hire any employee of Think Technologies employed by Think Technologies in a technical or sales position while bound by this section, Client will pay to Think Technologies a fee equal to 100% of such employee’s most recent annual salary and bonus. Client agrees that this 100% fee is fair and not excessive.
15.5 Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and delivered to 316 SE 8th Street Ocala, FL 34471 either: (i) by personal delivery; (ii) by certified mail; or (iii) by nationally recognized overnight courier and shall be effective upon receipt. Email correspondence can be used to send a courtesy copy of any notice to communications@think-team.com, but the courtesy copy alone shall not be deemed notice under Paragraph 15.5 and is not in lieu of formal written notice.
15.6 Phone Recording. Think Technologies customer support, sales or other representatives may be recorded and/or monitored for quality assurance and training purposes and by speaking with such Think Technologies representatives, Customer consents to such recording and/or monitoring.
15.7 Integration. This Agreement (including the sales quote and any Plan) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. Client specifically acknowledges and agrees that, in entering into this Agreement, Client has not relied on any information or promises that are not specifically set forth in this Agreement. Think Technologies will have no obligation to provide any services, software, networking, or hardware except as specifically set forth in this Agreement. This Agreement may be modified or waived by the Client in a written document signed by both parties. This Agreement may be modified by Think Technologies (i) in a written document signed by both parties; or (ii) by electronically transmitting modifications to the Client Contact listed above and allowing the Client ten (10) days to object to the modification before deeming it accepted by both parties. Any additional or conflicting terms on any purchase order for any products or services covered by this Agreement shall be void and without effect unless agreed to in a separate writing signed by both parties. Where any terms between this Agreement and the Sales Quote conflict, the terms in the Sales Quote shall govern.
15.8 Applicable Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods does not apply this Agreement. The parties submit to the jurisdiction of the state and federal courts sitting in Marion County, Florida, and agree that said courts shall have sole and exclusive jurisdiction over any and all disputes and causes of action involving such parties that arise out of or in connection with this Agreement.
15.9 Force Majeure. Except for Client’s payment obligations, each party shall be excused from performance and shall not be liable for any delay or failure to perform caused by the occurrence of, war, terrorism, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure of the Internet, act of any government affecting the terms hereof, explosion, hurricane, earthquake, flood or other act of God.
15.10 Third-party Beneficiaries. There are no intended third-party beneficiaries of this Agreement, and nothing in this Agreement may be relied upon by, or shall benefit, any party other than Think Technologies and Client.
15.11 Severability. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability shall not affect the other provisions of the Agreement and all provisions not affected shall remain in full force and effect. Both parties will attempt to substitute with a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
15.12 Headings and Counterparts. Headings to clauses are for ease of reference only and will not affect the interpretation of this Agreement.
15.13 Attorney’s Fees. If any civil action, or other legal proceeding, is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees.
Personal Data Breach. If Think Technologies or its Personnel has knowledge of or suspects any security incident involving Personal Data associated with this relationship (a “Personal Data Breach”), Think Technologies shall, (i) immediately, but in no event later than twenty-four (24) business hours after discovery of the breach or sooner if required by Privacy Laws, report to Client such Personal Data Breach and promptly furnish to Client all known details; (ii) promptly mitigate any harmful effects of such Personal Data Breach; (iii) cooperate with Client in any investigation, litigation, or provision of notices that Client deems appropriate; and (iv) promptly use all commercially reasonable efforts to prevent further possession, use, knowledge, disclosure or loss of Personal Data in contravention of this Agreement. Think Technologies shall further promptly provide Client with updated and additional information as it continues its investigation.