1. DEFINITIONS

1.1 “Agreement” means (1) any Master Development and Services Agreement, Schedule of Work or Nondisclosure Agreements between you and Switchfast and (2) these Terms.
1.2 “Customer Materials” means your text, graphics, forms, templates, databases, software, logos, Intellectual Property or administrative features that you provide to us.
1.3 “Deliverables” means the tangible work product resulting from our performance of Work under an Agreement. The tangible work product may include hardware, software, documentation, license key codes, specifications, text, graphics, and other materials, including any updates and upgrade thereto, and may further include third party components, including open source components, which are provided and licensed to you under the terms and conditions of respective third party licenses.
1.4 “Effective Date,” unless otherwise specified in an Agreement, means the date on which our Performance Obligations in the Schedule of Work commence.
1.5 “Furnish-Only” means Products that Customer installs.
1.6 “Intellectual Property” includes without limitation inventions, discoveries, works of authorship, and other subjects of patent, copyright, or trade secret law.
1.7 “Schedule of Work” means the Description of Work, Specifications, Performance Obligations, Payment Terms, and Delivery Schedule as agreed between you and us.
1.8 “Switchfast,” “we,” “our,” and “us,” refer to Switchfast Technologies, LLC, its subsidiaries and affiliates, as well as any other person or entity providing Work to you under the direction of Switchfast.
1.9 “Terms” means these Terms and Conditions.
1.10 “Work” means the Performance Obligations imposed on us in an Agreement between you and us.
1.11 “You” and “your” mean the person or entity that enters into an Agreement with Switchfast.

2. SCOPE OF SERVICES AND DELIVERY SCHEDULE

2.1 A “Scope Change” is any material change or addition requested by you to the Description of Work, Specifications, Performance Obligations, Payment Terms and/or Delivery Schedule. A Scope Change is not intended to include the mere refinement, correction or detailing of Work.
2.2 If you request a Scope Change, you shall provide us written notice. Upon our receipt of such notice and acceptance of the Scope Change, we reserve the right to amend the Schedule of Work, including but not limited to Payment Terms and Delivery Schedule. Our performance of Work requested by a Scope Change will not begin until the receipt by us of a signed Scope Change or amended Schedule of Work.
2.3 TIMELINESS. We will make reasonable efforts to meet the Delivery Schedule. Further, in the event of a Scope Change or delay in receiving content or other requested materials from you, we reserve the right to unilaterally amend the Delivery Schedule and cost of Work in a manner that is reasonable and commensurate with the nature of the Scope change or delay. We will provide you with timely notice of any such amendments.
2.4 CONTENT DEPENDENCIES. Whenever you must submit text or graphics to us, You shall submit text in digital format (either ASCII text or Microsoft Word files) and graphics in digital format (.gif, .tif, .bmp, .jpg). Any delay in the proper delivery of text and graphics may result in a corresponding delay in the Delivery Schedule, adjustment of the cost of Work, or both.
2.5 EDITORIAL AND TECHNICAL CONSULTING SERVICES FEES. If you request and we agree to provide Editorial Consulting Services and/or Technical Consulting Services, then we shall provide and you shall pay for such additional services at agreed upon rates.
2.6 TRAVEL EXPENSES. Travel expenses are not a component of the costs charged under any Agreement. Therefore, you will reimburse us for all reasonable travel and accommodation costs in the event that one or more of our employees must travel from our headquarters.

3. PAYMENT TERMS:

The following payment terms apply unless otherwise specified in our Agreement with you.

3.1 DUE DATES. For Deliverables consisting of hardware, software and out-of-pocket expenses, you agree to pay us on the date of delivery. For all other Deliverables, you agree to pay us, without offset, according to our invoice terms. Invoiced amounts may include applicable sales or use taxes.
3.2 LATE PAYMENT. If you do not pay us when due, you authorize us to charge (1) a fixed late fee equal to $20.00 plus (2) interest at a rate of 1.5% per month on all amounts due and owing. In addition, you will also be liable for, without prior written notice, for all collection costs, including but not limited to court costs and attorney’s fees.
3.3 INSUFFICIENT FUNDS. A charge of $50.00 will be assessed for all checks returned from the bank due to insufficient funds.
3.4 SUSPENSION OF WORK/TERMINATION OF SERVICES. In the event that any payment due to us is more than 45 days late, we are entitled, at our election and without prior written notice or prejudice to any other remedies we may have, suspend our Work or terminate any Agreement.
3.5 CREDIT CHECK. You agree to allow us to engage a credit reference agency to determine whether we should extend credit to you. If we determine that your credit is insufficient, then we reserve the right to require full payment for services rendered in advance.

4. LICENSE TERMS

4.1 We agree that the Customer Materials shall be and remain the sole property of Customer. You represent and warrant that you have full right, license and authorization for the reproduction and publication of the Customer Materials furnished to us and agree to indemnify, defend and hold us harmless from any and all liability, loss, damages, costs and expenses arising from our use of Customer Materials. You grant us a nonexclusive license to use, reproduce, and modify any Customer Materials that you may provide to us for the purpose of performing the Work and creating the Deliverables.
4.2 We shall retain ownership of all Deliverables other than the Customer Materials, including without limitation all of our tools, applications, and libraries used to develop the Deliverables and/or incorporated into the Deliverables.
4.3 RETENTION OF RIGHTS. Subject to the rights granted herein, we will retain all ownership of all Intellectual Property in and to our Switchboard, links, tools, and all technologies and methodologies developed by us or licensed to us, as well as the products of any Implementation Support Services, Editorial Consulting Services or Technical Consulting Services, or other services provided by us. Our Switchboard refers to the service application package provided by us and that is offered as a product to customers who have paid specifically for this option. Services include, but are not limited to, Guestbook, Contacts, Orders and Mailing List.
4.4 We grant you non-exclusive, worldwide and non-transferable license to use the Deliverables provided hereunder to operate your systems described in the relevant Schedule of Work. You may transfer these rights only in conjunction with a merger or a sale of substantially all of your assets, in which case such rights will be transferred only to the surviving or acquiring entity. This license does not permit you to sublicense rights to any third parties without our prior written consent.
4.5 USE OF SWITCHFAST INTELLECTUAL PROPERTY. Without limiting the generality of anything set forth in this Agreement, you agree that you shall use our Intellectual Property solely as permitted by this Agreement and shall not yourself or permit others before, during or after the Term to:
4.5.1 sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way our Intellectual Property except as may be expressly permitted by us;
4.5.2 provide, disclose, divulge or make available to, or permit use of our Intellectual Property by any third party without our prior written consent, which consent we may withhold for any or no reason;
4.5.3 attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive any of our computer programs, source code, patents, copyrights, trade secrets or Intellectual Property, or our methodology related to the creation and compilation of our tools and links or any other information furnished by us to you. All information required (i) to achieve interoperability of any software programs provided by us pursuant to this Agreement with other software programs, or (ii) to correct any errors in such software programs, is available from us without cost. You shall not copy any such computer programs other than for normal operation, provided always that you shall be permitted to maintain a back-up copy of any such programs as part of its normal back-up routine;
4.5.4 compile or create any derivative products based upon the our Intellectual Property.
4.5.5 take any action in derogation of or adverse to our rights in and to our Intellectual Property.
4.6 AUDIT RIGHTS. You agree that an independent audit firm may, upon reasonable notice, examine and audit your records and systems to ensure compliance with any license granted by us Any audit will be performed during your regular business hours and in a manner which avoids unreasonable interference with your business operations.

5. WARRANTY DISCLAIMER/LIMITATION OF LIABILITY

5.1 WARRANTY DISCLAIMER. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES OR EQUIPMENT YOU RECEIVE FROM US, AND DISCLAIM ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ARE NOT RESPONSIBLE FOR CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING WITHOUT LIMITATION ACTS OR OMISSIONS OF OTHERS, ATMOSPHERIC CONDITIONS, OR ACTS OF GOD. WE DO NOT PROMISE UNINTERRUPTED OR ERROR FREE SERVICE. WE MAY NOT MANUFACTURE ANY EQUIPMENT OR SOFTWARE THAT YOU MAY USE IN CONNECTION WITH YOUR SERVICE, AND YOUR ONLY WARRANTIES AND REPRESENTATIONS WITH RESPECT TO EQUIPMENT OR SOFTWARE ARE THOSE PROVIDED BY THE MANUFACTURER (WITH RESPECT TO WHICH WE HAVE NO LIABILITY WHATSOEVER).
5.2 LIMITATION OF LIABILITY. IN THE EVENT WE ARE FOUND TO BE RESPONSIBLE TO YOU FOR DAMAGES IN ANY WAY RELATING TO OUR WORK, YOU AGREE THAT OUR LIABILITY TO YOU WILL NOT EXCEED THE LESSER OF (1) THE GROSS PRICE OF OUR AGREEMENT WITH YOU OR (2) THE PRO-RATED MONTHLY RECURRING CHARGE FOR SERVICES DURING THE PERIOD IN WHICH YOU INCUR SUCH DAMAGES. WE ARE NOT LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS OR LOST BUSINESS OPPORTUNITIES), PUNITIVE OR EXEMPLARY DAMAGES, THE COST OF ALTERNATIVE SERVICES, OR ATTORNEYS' FEES.
5.3 Our cumulative liability to you for all claims whatsoever related to this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all monies paid by you to us under this Agreement.

6. MUTUAL COVENANTS

6.1 “Confidential Information” means any information disclosed by one party to another (1) in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, and (2) oral information designated as confidential at the time of oral disclosure and designated in writing as “Confidential Information” within 30 days after oral disclosure. Switchfast’s Intellectual Property, whether or not so designated shall be deemed Confidential Information.
6.2 Each party shall treat shall not disclose to any third party or use such Confidential Information except as set forth herein. Each party shall use the same degree of care which it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the accidental disclosure and shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of Confidential Information
6.3 NO SOLICITATION. You acknowledge that we provide a valuable service by identifying persons to perform the Work. You further acknowledge that you would receive substantial additional value, and we would be deprived of the benefits of our work force, if you directly or indirectly hire our employees after they have been introduced to you by us. Therefore, without our prior written consent, you shall not directly or indirectly solicit the employment of our employees who are or have been assigned to perform Work for you until one (1) year after completion of our Work. In the event that you employ one of our employees assigned to perform Work, you agree to pay us within thirty (30) days of the date of such hiring, an amount equal to 100% of the gross annual salary we pay to the person you hire as a fee for the additional value obtained.

7. GENERAL PROVISIONS

7.1 FORCE MAJEUR. We shall not be liable for non-performance caused by events or conditions beyond our reasonable control. This provision does not relieve you from making payments due and owing.
7.2 RELATIONSHIP. These Terms are not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.
7.3 NO WAIVER. The failure by us to enforce any provision of the Agreement shall not be construed as a waiver of the provision.
7.4 SEVERANCE. If any provision of our Agreement is held unlawful or otherwise ineffective, in whole or in part, by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect; and the provision modified, or the Agreement interpreted to the maximum extent permitted, to effectuate the original intent and purpose of the parties.
7.5 REMEDIES. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
7.6 ENTIRE AGREEMENT. These Terms constitute the parties' entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms contained in any quote, purchase order, acknowledgment, or other communication between the parties relating to its subject matter during its term.
7.7 MARKETING AND PUBLIC RELATIONS. We reserve the right to publicize our Work in marketing and public relations materials. If we perform website development services for you, You authorize us to include our logo, meta-tags, and reciprocal links on your website.
7.8 BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
7.9 JURISDICTION AND LAW. Any claim arising under or relating to this Agreement shall be governed by the internal substantive laws of the State of Illinois, without regard to its conflict of laws rules. You consent to the exclusive jurisdiction in Cook County, Illinois or the U.S. District Court for the Northern District of Illinois.
7.10 NOTICE. All written notices must be delivered in person or by means evidenced by a delivery receipt or acknowledgment and will be effective upon receipt. Notices communicated by electronic mail or facsimile will be deemed to be written.
7.11 EXPORT LAWS. Deliverables may be subject to export controls or trade laws of the United States and other countries. You will comply with all such laws and obtain all licenses to export, re-export or import as may be required.