Last Modified: December 28, 2023
WHEREAS CLIENT agrees to hire XBYTE Cloud, LLC to provide CLIENT the services set forth below.
1. Services and Payment: XBYTE Cloud, LLC is in the business of providing Network Design and Information Technology services and the client desires to engage XBYTE CLOUD with respect to said services subject to the terms and conditions of this Agreement. To address a Statement of Work by both parties, prior communication outlining the scope of the engagement would have been already determined leading to this agreement. As payment for XBYTE CLOUD services herein, CLIENT shall pay XBYTE CLOUD a fee in accordance with such terms and conditions as set forth in Schedule A, attached hereto.
2. Term and Termination: The initial term of this Agreement shall commence as of the Effective Date and shall continue until completion of the Schedule of Work as agreed upon by xByte Cloud and Client.
3. Confidential and Proprietary Information: All documents, specifications, drawings, sketches, data, and business information, whether written, oral, or otherwise, and whether in their original forms or combined with other information (all hereinafter “Information”), which a party (the “Disclosing Party”) furnishes to the other party (the “Receiving Party”) hereunder shall be treated as confidential by the Receiving Party and its employees and shall be the Disclosing Party’s exclusive property. All copies of such Information in written, graphic, or other tangible forms, as well as Information stored magnetically, shall be returned to the Disclosing Party promptly upon request. Unless such Information was previously known to the Receiving Party free of any obligation to keep it confidential or has been or is subsequently made public by the Disclosing Party or a third party which is free of any obligation to keep it confidential, the Information (a) shall be kept confidential by the Receiving Party and its employees, (b) shall not be disclosed by the Receiving Party or its employees to third parties without the prior written consent of the Disclosing Party and (c) shall be used by the Receiving Party and its employees only in connection with the relationship contemplated hereunder, and not for any other purpose unless and until agreed in writing by the parties. The Receiving Party shall disclose such Information only to employees with a bona fide need to know, shall inform its employees of their obligations hereunder, and shall take all necessary steps with regard to its employees, by agreement or otherwise, to satisfy fully its obligations under this Section. The obligations of this Section shall survive the termination of this Agreement. The Receiving Party shall have no rights in the Information, by license or otherwise, by virtue of its disclosure hereunder to the Receiving Party. Each party expressly agrees that its failure to comply with this Section shall constitute a sufficient basis for the other party to obtain injunctive relief for breach of confidentiality or pursue any other right it may have at law or equity.
4. Duties of Client: CLIENT acknowledges and agrees to provide XBYTE CLOUD with full access to CLIENT’S work areas, computer equipment, communications equipment, and office equipment and provide the necessary personnel to assist XBYTE CLOUD in accomplishing such tasks in furtherance of this Agreement
5. Indemnification: Each party agrees to indemnify, defend and hold harmless each other, its agents, officers, shareholders, and directors, from all claims, damages, losses, and expenses, including reasonable attorneys' fees, arising out of: a) a breach of any of the covenants, agreements or responsibilities contained in this Agreement; b) the inaccuracy of any representations or warranties contained in this Agreement; and c) any negligent or unauthorized performance or nonperformance of its duties under this Agreement. This provision shall survive the termination of this Agreement.
6. Limitation of Liability: NEITHER PARTY NOR ITS AFFILIATES SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
7. Waiver: No delay or omission in exercising any right or powers shall impair such right or power or be construed to be a waiver. No provision of this Agreement will be waived, and no breach excused unless the waiver or consent is in writing and is signed by the party that is claimed to have waived or consented.
8. Applicable Law/Attorney fees/Waiver of Jury Trial/Venue: THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF. If any party to this Agreement brings an action or proceeding for declaration of the rights of the parties under this Agreement, for injunctive relief, for an alleged breach or default of this Agreement, or any legal action arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and expenses, including all fees and expenses incurred at trial, on appeal or in any bankruptcy proceedings in addition to any court costs incurred and any other legal damages or other relief rewarded. Each party hereby irrevocably waives any right to a jury trial in any action or proceeding between the parties whether hereunder or otherwise. The parties hereby consent and agree that Pinellas County, Florida, shall be the exclusive, proper, and convenient venue for any legal proceeding in federal or state court relating to this Agreement, and each party waives any defense, whether asserted by motion or pleadings, that Pinellas County, Florida, is an improper or inconvenient forum. The provisions of this Section shall survive termination or expiration of this Agreement for any reason.
9. Independent Contractors/Non-Solicitation: Each party shall act as an independent contractor under the terms of this Agreement. No party is, nor shall it be deemed to be, an employee, co-venturer, partner, franchisee, or legal representative of the other for any purpose. No party shall be entitled to enter into any contracts in the name of, or on behalf of the other, nor shall either party be entitled to pledge the credit of the other in any way or hold itself out as having authority to do so. During the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the parties agree not to directly or indirectly solicit or hire the agents, employees, or staff employed or engaged by the other party. This section shall survive termination of the Agreement.
10. Miscellaneous: CLIENT acknowledges that XBYTE CLOUD shall not be liable for loss of CLIENT’S information arising out of CLIENT’S inability to use its systems and that it is CLIENT’S responsibility to maintain backup data necessary to restore critical files in the event of loss or damage to such data from any cause. As such, CLIENT agrees to hold XBYTE CLOUD harmless for any such loss of data.
IN ACCORDANCE with the terms of this Agreement, CLIENT hereby agrees to pay to XBYTE CLOUD the following amounts, which shall be payable in accordance with the following terms:
$225 Per Hour unless otherwise agreed upon. All services are performed Monday-Friday during normal business hours. Payment terms are due on receipt of the invoice.
The hourly rate set forth above shall apply to all services rendered, including time spent on design, support, installation, maintenance, and troubleshooting.
Invoices shall be submitted by xByte Cloud for services rendered by all xByte Cloud personnel. Payment of invoices will be due upon receipt unless other terms are mutually agreed upon.
xByte Cloud warrants that contracted personnel shall be qualified to perform all work-related tasks in accordance with the job specifications and instructions previously furnished by the client and approved by xByte Cloud. The determination of such qualified personnel shall be at xByte Cloud’s sole discretion.