1. Engagement. From time to time, “Client” may request Brute Force Technology LLC, a Washington limited liability corporation, to provide computer consulting services, and/or other services (collectively called “Services” hereafter). If Brute Force Technology LLC agrees to provide such Services, in its sole and absolute discretion, such Services shall be governed by the terms and conditions of this Agreement. “Agreement” shall be deemed to include the Master Client Agreement and Rate Schedule, all as amended from time to time by the parties. All terms herein and any attachments hereto are subject to change without notice by Brute Force Technology LLC.
2. Acceptance. Brute Force Technology LLC hereby objects to any conflicting, additional and/or different terms sent by Client in accepting this Agreement and the same shall not become part of this Agreement. In the event of any conflict in the provisions of any attachment and this Agreement, the provisions of this Agreement shall control, unless specifically stated otherwise.
3. Fees. If Brute Force Technology LLC performs Services for Client, Client agrees to pay Brute Force Technology LLC in accordance with the applicable charges identified in the attached Rate Schedule. Fees are subject to change upon 30 days notice.
4. Client Cooperation. Client recognizes that timely completion of assignments by Brute Force Technology LLC will depend upon the cooperation of Client’s personnel, and Client agrees to provide Brute Force Technology LLC with access to Client’s staff and resources as Brute Force Technology deems necessary to perform the Services. Client acknowledges that normal server monitoring may be by a software application chosen by Brute Force Technology LLC and checks may be performed remotely and Brute Force Technology LLC will need access to the server and administrative passwords in order to perform these Services.
5. Limitation of Remedies and Liability. Brute Force Technology LLC warrants that for a period of thirty (30) days from the date of installation, that the Services, when completed, substantially conform to the agreed upon specifications. Brute Force Technology LLC will, at its sole election, either repair or replace its work that fails to so conform, or will refund the amount paid by Client for such work, provided Client notifies Brute Force Technology LLC of such failure within the time limit set forth in Section 6. In the event of a problem or failure of Client’s system, Client shall call Brute Force Technology LLC for Services and confirm the urgency or the Services required. Client shall have no right of setoff or claims for damages, lost profits, lost data or other electronic information, or other special, indirect, incidental or consequential damages, even if the possibility of such damage was disclosed to or could have been reasonably foreseen by Brute Force Technology LLC. Client recognizes that work performed under this Agreement may cause loss or alteration of data stored on fixed media devices in Client’s computer system or loss of privacy due to the Internet or firewall problems. It is Client’s responsibility to protect against data loss, discovery or alteration by implementing systems and maintaining backup and archival copies of programs and data. Brute Force Technology LLC will not be liable for errors or inaccuracies resulting from data input or postings by users. The parties agree that due to the difficulty in foreseeing possible damages, Brute Force Technology‘s total liability to Client or any person claiming by or through Client to Brute Force Technology LLC, shall not exceed the Fees paid by Client to Brute Force Technology LLC for the Services directly involved for the three (3) months immediately preceding the occurrence to which the claim relates.
6. Completion. It is Client’s responsibility to review and test the work performed or work product delivered to verify its completion and proper operation, and to notify Brute Force Technology LLC within 15 days of delivery of either (i) the Client’s acceptance of the work as conforming to specifications or other applicable acceptance criteria or (ii) any defects, malfunctions, shortages, missing components or other failure of the work to conform to specifications. If Client accepts the work or does not notify Brute Force Technology LLC of any failure of the work to conform to specifications within the 15 day period, Client will be deemed to have accepted the work as fully conforming to any agreed-on specifications or, in the absence of such specifications, Client’s reasonable satisfaction. In such cases, Client waives any claim or defense relating to its obligation to pay for the work, or for damages.
7. Payment. Client will pay Brute Force Technology LLC upon presentation of its invoice. Terms of payment are Net 15 Terms for Business Customers, and payment is due upon completion of the work for Home User customers. In addition to all remedies at law or in equity, Brute Force Technology LLC reserves the right to withhold, without liability, Services if the Client is delinquent in its payments or other duties hereunder.
8. Third Party Claims. Client will be responsible for defending and indemnifying Brute Force Technology LLC against any third-party claims, damages, and expenses resulting from Client’s directions, infringements or specifications (for example, if Client requests Brute Force Technology LLC to install more copies of a copyright protected program than Client is licensed).
9. Confidential Information. Each party hereby acknowledges that during the performance of this Agreement, each party may learn or receive confidential information of the other party and therefore each party hereby confirms that each party will undertake efforts so that all such information relating to the other party’s business will be kept confidential by such party, except to the extent that such information is required to be divulged to such party’s clerical or support staff or associates in order to enable such party to perform such party’s contractual obligations hereunder.
10. Relationship of Parties. The parties intend that the relationship between them created by this Agreement is that of client/independent contractor. No agent, employee or servant of either shall be or shall be deemed to be the employee or servant of the other. Client is interested only in the results obtained under this Agreement; the manner and means of conducting the work are under the sole control of Brute Force Technology LLC.
11. Term. This Agreement shall commence on the Effective Date and shall continue until terminated by either party by delivery of written notice of termination to the other party. The terms of this Agreement shall remain in effect for any requests for Services submitted by Client and accepted by Brute Force Technology LLC prior to termination of this Agreement.
12. Work Product. Except as agreed in writing, Brute Force Technology LLC shall have all rights with respect to all materials developed under this Agreement, and Client is hereby granted a non-exclusive license to use and employ such materials within Client’s business.
13. Taxes. It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to Brute Force Technology LLC for the state of use.
14. Severability. In the event that any provision of this Agreement is found to be invalid by any court or arbitrator of competent jurisdiction, such provision shall be deemed to be modified to the extent necessary to allow it to be enforced under applicable law. In any event, all remaining provisions of this Agreement shall continue in full force and effect.
15. Governing Law and Attorney’s Fees. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington. Venue for any action shall be laid in Snohomish County, Washington. No action may be brought by the Client more than one year after the cause of action has arisen. Client agrees to pay to Brute Force Technology LLC all attorneys’ fees and costs incurred in enforcing this Agreement or collecting payment hereunder, whether in pretrial, trial, arbitration, appeal, in any proceeding including bankruptcy, or in any action to enforce an award or judgment.
16. Notices. Notices should be sent via email to Brute Force Technology LLC.
17. Assignment. This Agreement may not be assigned by Client without the prior written consent of Brute Force Technology LLC. Brute Force Technology LLC may assign this Agreement or any portion, provided that such assignment shall not relieve Brute Force Technology LLC of its obligations herein.
18. Force Majeure. Brute Force Technology LLC shall not be liable for any delay in or failure to provide the Services due to any cause beyond its reasonable control, whether by improper use, acts of God, acts of war, strikes or riots, unauthorized repairs, relocation or reinstallation made by personnel other than Brute Force Technology LLC or without Brute Force Technology LLC supervision and approval, unusual shock or electrical damage, accident, fire, water damage, neglect or adverse environmental conditions harmful to electronic equipment or causes other than normal use, lack of power, or failure by Client to maintain the site. If service is required due to the above, such service will be considered additional work hereunder.
19. Entire Agreement. This Agreement, including the Schedules and Addendum, contains the complete understanding of the parties with respect to the subject matter hereof and will govern all work performed by Brute Force Technology LLC for Client.