Terms and Conditions
Select the term or agreement type below to view. Some addendums or agreements are not publicly listed. To receive a copy, please contact your sales engineer.
Client and Magoo & Associates, LLC (“Magoo & Associates”, “we”, and “US”) agree to each of the following terms:
Section 1. Defined Terms.
1.1 This “Agreement” means this Master Service Agreement, together with the Magoo & Associates proposal, which, when signed by Client and us, is the Sales Order Form entered into between Client and us; the AUP; these General Terms & Conditions; and all Schedules attached to the Sales Order Form or this Master Service Agreement, which may include, but not limited to any related Service Level Agreement (SLAs), Product Terms & Conditions, and all written amendments entered into between Client and us.
1.2 “AUP” means our Authorized Use Policy regarding the Client’s use of the Managed Service attached to this Master Services Agreement, as it may be amended from time to time in accordance with Section 5.
1.3. “Business Day” means Monday through Friday, 8:00 a.m. to 5:00 p.m., United States Central Time, excluding any federal public holiday or other day that is a Magoo & Associates holiday.
1.4. “Managed Service” means the provision by us to Client of the information technology services, including consulting, managed and data center service offerings, the servers, other devices and other services described in a Sales Order Form and the related SLA’s
1.5. “Protected Information” means any (i) “non-public personal information,” as that term is defined in the Gramm-Leach-Bliley Act, (ii) “protected health information” as that term is defined in the regulations under to the Health Insurance Portability and Accountability Act, (iii) all information that identifies an individual, such as name, social security number or other government issued identification number, date of birth, mother’s maiden name, unique biometric data, unique electronic identification number, address, or telecommunication number and (iv) all other information that is the subject of legal or regulatory security requirements; in each case, as in effects as of the Effective Date and as subsequently enacted.
1.6. “Service Commencement Date” means the date on which we send an e-mail message to Client that provides access codes and passwords for use in connection with the Managed Service and the Managed Service is available for access by Client in accordance with this Agreement, unless the applicable SLA specifies a different Service Commencement Date.
1.7. “Service Level Agreement”, also referred to as an “SLA”, means any one (1) of the Magoo & Associates standard Service Level Agreements (SLAs) indicating the types of Managed Services being provided to Client by Magoo & Associates, each of which is incorporated by reference in the Sales Order Form, as it may be amended from time to time by the written agreement of Client and us. If more than one (1) Sales Order Form for a Managed Service exists, then the most recently executed Sales Order Form executed by Client and us is the Service Level Agreement that governs that Managed Service.
1.8. “Sales Order Form” means a Magoo & Associates Proposal that has been signed by Client and us. Each Magoo & Associates Sales Order Form incorporates this Master Services Agreement by reference, as it may be amended from time to time in accordance with this Agreement.
1.9. “Service” means the Managed Services and any Supplemental Services provided by us to Client pursuant to this Agreement.
1.10. “Supplemental Services” means the services described in Section 2.2, and Section 2.3 below.
1.11. “Term” means the Initial Term and any Renewal Term or Extended Term, collectively.
1.12. “Cloud Subscription” means any cloud service hosted by Magoo & Associates, LLC or their partner.
1.13. “Site” means the physical location of residence or business for service registered with Magoo, and depicted within the sales order form.
Section 2. Services.
2.1. Managed Services. Contingent upon Client’s satisfaction of our credit approval requirements and our verification of the information provided by Client for the purpose of establishing the Service, we shall provide the Managed Services in accordance with the terms and conditions of each Sales Order Form and related Service Level Agreement (SLAs) entered into pursuant to this Agreement and the other terms of this Agreement.
2.2. Supplemental Services. In addition to the Managed Service, we may from time to time perform certain additional services on an hourly or fixed fee basis, which may include the customization of the Managed Services at Client’s request and other professional computer software and services related to the Managed Services. Supplemental Services will be performed only with Client’s written agreement in advance and will be invoiced at our then current rates or other rates approved in advance in writing by Client and us. We may also perform services as described in the AUP for the fees stated in the AUP as necessary to remediate Managed Service problems caused by AUP violations by Client without obtaining Client’s consent.
2.3. Cloud Subscription. Clients may subscribe to one or multiple cloud based subscription hosted by Magoo & Associates, LLC or our strategic partners. Basic provider support is included with all Cloud Subscription, and provides the client administrator basic support for software issues where the client administrator makes changed to their subscription or service. Basic support may be capped on a monthly bases and should be included with the client sales order. All changes, modifications, upgrades, and other services requested by the client to be made by Magoo & Associates, LLC Technical Support Service team is considered a supplemental service if not included within their sales order form.
2.4. Will-Call Services. Clients may elect “on-call, or Ad-Hoc” services made available by Magoo & Associates, LLC for consultation or other computer/IT services. Client acknowledges the right of Magoo & Associates to prioritize services for contracted customers. Will-Call services rates and availability are subject to change at any time. No SLA’s are available with Will-Call services unless explicitly provided within the Sales Order Form.
Section 3. Term
This Agreement shall remain in effect for so long as any Sales Order Form incorporating this Agreement is in effect. The term of each Sales Order Form begins on the Service Commencement Date for that Sales Order Form and continues for the period of 12 (twelve) months (the “Initial Term”). We and Client may agree to one or more additional terms having fixed number of months to follow the expiration of the Initial Term (each a “Renewal Term”). If upon the expiration of the Initial Term, no Renewal Term has been established by the agreement of parties, the Sales Order Form shall automatically renew for consecutive terms of 30 days (each, an “Extended Term”) until we or Client provides the other party with at least 30 days advance written notice of non-renewal of this Agreement. We and Client agree that the Term of this agreement may be cancelled at any time due to breach of Agreement or SLA’s attached herein, as provided in Section 12.1
Section 4. Payments.
4.1. Fees. Client shall pay the fees stated in the Sales Order Form and the fees for any Supplemental Services as described in Section 2.2). Our first invoice under a Sales Order Form shall include any applicable set up fees and a prorated part of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month containing the Service Commencement Date. Following the Service Commencement Date, monthly recurring fees shall be invoiced in advance on or about the first day of each calendar month and are due within 15 days following our sending Client an invoice for any such Supplemental Services. Following the expiration of the initial Term, unless we and Client have agreed to a Renewal Term as described in Section 3 that modifies our fees for the Services, we may modify the monthly recurring fees for any Managed Service not fewer than 30 days after giving written notice to Client.
4.2. Collections. We may suspend any or all Services not fewer than 10 days after giving written notice to Client if payment for any Service is overdue by more than 30 days. Client shall pay our then current reinstatement fee following such a suspension. We may charge interest on amounts that are overdue by 15 days or more at the lesser of one and one half percent (1.5%) per month or the maximum rate allowed under applicable law. In addition, upon demand Client shall pay our costs of collection for all overdue amounts for the Services, including collection agency fees, attorneys’ fees and court costs. Client is subject to (i) credit hold for delinquent payments 30-60 days (ii) services suspension for delinquent payments 60-90 days, and (iii) suspension and irrevocable cancellation of services for delinquent payments greater than 90 days.
4.3. Early Termination. Client acknowledges that the amount of the monthly recurring fee for each Managed Service is based on Client’s agreement to pay monthly recurring fees for the entire then current Term. Without limiting any other remedy available to us arising from an early termination of this Agreement, if we terminate this Agreement for Client’s breach of this Agreement in accordance with section 12.2 (i), (ii), or (iii), all fees due under this Agreement, including the monthly recurring fees for the remaining part of the Term, are due 15 days following such termination of the Managed Service.
4.4. Taxes. All federal, state or local taxes applicable to the Services shall be added to each of our invoices for the Services. Client shall pay all such taxes to us unless a valid exemption certificate is furnished to us for each of the states of use of the Managed Service by Client.
4.5.Off-Boarding. Off-Boarding is the process of relinquishing customer service information, licensing, 3rd party services, service notes, and all other customer information and services maintained by Magoo & Associates, LLC. Once fully off-boarded, customer may request that any and all information maintained by Magoo & Associates be destroyed. Paid or un-paid off-boarding processes will be suspended until customer billing accounts are current. Client agrees that billing disputes and/or arbitration will transpire after the account payments are current and customer is off-boarded.
Section 5. AUP.
We may, on our reasonable commercial judgement, amend the AUP from time to time to describe reasonable restrictions and conditions on Client’s access to and use of the Services. Any such amendments to the AUP are effective on the earlier of 15 days following our notice to Client that an amendment has been made, or the commencement date of any Renewal Term or Extended Term, as the case may be. However, if: (i) the amendment would materially and adversely affect Client, and (ii) Client provides us with a written notice describing its objection to the amendment in reasonable detail within 10 days of the effective date of the amendment, and (iii) we do not agree to waive the amendment as to Client within 5 days after such Client notice, then Client may terminate this Agreement as provided in Section 12.1 (iii).
Section 6. Suspension of Service.
We may suspend Services to Client without liability if: (i) we reasonably believe that the Services are being used in violation of this Agreement or applicable law; (ii) Client fails to cooperate with any reasonable investigation by us of any suspected violation of the AUP; (iii) there is a denial of service attack on Client’s servers or other event for which we reasonably believe that the suspension of Services is necessary to protect our network or our other Clients or (iv) requested by a law enforcement or government agency. Information on our servers will be unavailable during a suspension of the Services. We shall give Client written notice at least 24 hours in advance of a suspension under this Section 6, pursuant to law enforcement or government agency’s legal process, or suspension on shorter or contemporaneous notice is necessary to protect us or our other Clients from an imminent and significant risk. We shall not suspend the Services if the grounds for the suspension are cured during the notice period. We shall promptly reinstate suspended Services when the reasons for the suspension of Services are cured.
Section 7. Representations and Warranties.
7.1 Reciprocal. We represent and warrant to Client, and Client represents and warrants to us, that: (i) it has the power and authority to enter into this Agreement and to perform its obligations under this Agreement: (ii) it has taken all necessary action on its part to authorize the execution and delivery of this Agreement and (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents or any agreements to which it is a party.
7.2. Client. Client represents and warrants to us that: (i) the information Client has provided to us for the purpose of establishing an account with us is accurate; (ii) Client will not use the Services in violation of any federal, state or other law, rule or regulation (iii) Client shall not resell or make available any of the Services to any person or entity and (iv) Client shall perform its security and other obligations set forth in this Master Service Agreement, including but not limited to the Sales Order Form, the AUP, the General Terms and Conditions, and all Schedules attached to the Sales Order Form, or this Master Services Agreement, which may include, but not be limited to any related SLA’s and all written amendments entered into between Client and us.
Section 8. Unauthorized Use of Service.
We shall perform the specific security services described in the Sales Order Form. Client shall be responsible for all unauthorized use of the Services by any person or entity, except as otherwise expressly set forth in this Agreement.
Section 9. Indemnification.
9.1. Indemnification. The indemnification obligations set forth in this Section 9 shall be the parties’ exclusive rights and remedies with respect to this Agreement.
9.2. Indemnity by Client. Client shall indemnify and hold harmless us, our affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to any of the following: (i) the actual or alleged use of the Services in violation of: (a) the AUP, (b) any other part of this Agreement or (c) applicable law or (ii) any breach by Client of an of its obligations under this Agreement.
9.3. Reciprocal Indemnification. Each party shall indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, members, agents and employees from and against all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever including reasonable attorneys’ fees) brought by a third party under any theory or legal liability arising out of or related to the indemnifying party’s actual or alleged: (i) gross negligence, (ii) willful misconduct or (iii) infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark or other intellectual property right.
9.4. Procedures. A party seeking indemnification under this Section 9 shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section 9 unless and to the extent that the failure materially prejudices the defense of the claim. The indemnifying party may select counsel to defend the indemnified party in respect of any indemnified claim under this Section 9; provided, however, that the counsel selected must be qualified to defend the indemnified claim in the judgement of the indemnified party which Judgement shall not be unreasonably withheld or delayed. The indemnified party shall keep the indemnifying party fully informed of the status of the claim, including all communications from the claimant, and shall cooperate with the indemnifying party with respect to any judicial proceeding or dispute resolution procedure. The indemnifying party shall not settle any claim covered by this Section 9 without written consent in advance of the indemnified party, which consent shall not be unreasonably withheld or delayed. If, however, such settlement shall be only for a monetary amount covered by the indemnifying party’s indemnification obligation under this Section 9 and shall not impose any other liability on the indemnified party, then, no consent shall be required from the indemnified party. Notwithstanding anything in this Section 9 to the contrary, if we are indemnifying multiple Clients related to the subject matter of the indemnification claim, we shall have the right to seek consolidation of all such actions and to select counsel to defend the actions.
9.5. Patent, Copyright, Trade Secret. Notwithstanding any other provision in this Section 9, if we determine in our sole discretion that any Service may involve any product that may become subject to a claim of infringement or misappropriation, we may select to (a) obtain the right of continued use of such product, or (b) replace or modify such products to avoid such claim. If we do not elect to do so, then all applicable licenses involving the product shall terminate. This Section 9.5 states our entire liability and Client’s sole and exclusive remedies for patent or copyright infringement and trade secret misappropriation.
Section 10. Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLIENT AGREES AND ACKNOWLEDGES THAT WE MAKE NO REPRESENTATION OR WARRANTY TO CLIENT, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION, QUALITY, FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE DO NOT WARANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. CLIENT ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY PROVIDED BY THIRD PARTY SOFTWARE OR SERVICES THAT COULD RESULT IN THE LOSS OF CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY DUE TO UNFORSEEN THREATS.
Section 11. Limitation of Damages.
11.1. Credits. THE CREDITS DESCRIBED IN ANY APPLICABLE SERVICE LEVEL AGREEMENT AND SALES ORDER FORM ARE CLIENT’S SOLE REMEDY FOR OUT FAILURE TO MEET THE SERVICE REQUIREMENTS STATED IN SUCH DOCUMENTS.
11.2. No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANH LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDNETAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES.
11.3. Monetary Limitation. NOT WITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR MAXIMUM ADDREGATE MONETARY LIABILITY UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND INFRINGEMENT) SHALL NOT EXCEED SIX (6) TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE SALES ORDER FORM IN EFFECT AT THE TIME OF THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
11.4. Failure to Render Services. WE ARE NOT RESPONSIBLE FOR FAILURE TO RENDER SERVICES DUE TO CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, FIRE, FLOOD, EARTHQUAKE, CIVIL UNREST, ACT OF TERROR, ACT OF GOVERNMENT, STRIKE, OR OTHER LABOR PROBLEM (OTHER THAN ONE INVOLVING OUR EMPLOYEES), INTERNET SERVICE PROVIDER FAILURE OR DELAY.
Section 12. Termination
12.1. By Client. Client may terminate this Agreement before the expiration of the Initial Term or any Renewal Term without liability to us (except for amounts due for Services through the effective date of such termination and subject to Section 4.2) as follows: (i) we fail in a material way to provide the Managed Service in accordance with the terms of this Agreement and do not cure the failure within 10 days following receipt of Client’s written notice describing the failure in reasonable detail; (ii) we materially violate any other provision of this Agreement and fail to cure the violation within 30 days following receipt of Client’s written notice describing the violation in reasonable detail or (iii) 30 days after written notice, in the event of an amendment to the AUP that materially and adversely affects Client that is not waived by us as provided in Section 5.
12.2. By Us. We may terminate this Agreement before the expiration of the Initial Term or any Renewal Term without liability to Client as follows: (i) upon not fewer than 5 days written notice, if Client is overdue by more than 60 days on the payment of any amount due under this Agreement; which overdue payment shall continue to be due and payable by Client following such termination and subject to Section 4.2; (ii) Client materially violates any other provision of this Agreement and fails to cure the violation within 10 days after a written notice from us describing the violation in reasonable detail or (iii) after notice to Client of at least 90 days, if we are threatened with a claim for intellectual property misappropriation or infringement related to the provision of the Services and, in our sole discretion, we are unable to modify the Services in a manner that avoids a potential risk of liability pursuant to such claim.
Section 13. Confidentiality
13.1 Confidential Information. “Confidential Information” means all information disclosed by one party to the other, whether before or after the execution of this Agreement, including: (i) with respect to us, our unpublished prices and other terms of the Services, audit and security reports, server configuration designs, data center designs (including non-graphic information observed by Client on a tour of a data center), and all other trade, business, financial and technology information about us and our operations that we consider to be our confidential and proprietary property, (ii) with respect to Client, content transmitted to or from, or stored by Client on, our servers and (iii) with respect to both parties, all other information that is marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given by the disclosing party to the receiving party within 15 days following such disclosure. Confidential information shall not include any information that (a) was in the public domain or enters the public domain through no act or omission on the part of the receiving party; (b) is rightfully disclosed to the receiving party by a source not bound by a confidentiality agreement with the other party hereto; (c) was in possession of the receiving party prior to receipt from the disclosing party as evidenced by the books and records of the receiving party or (d) is developed by the receiving party after receipt of Confidential Information from the disclosing party independent of the Confidential Information of the disclosing party and such independent development is evidenced by the contemporaneous books and records of the receiving party.
13.2. Use and Disclosure. Each party agrees not to use the other party’s Confidential Information except in connection with the performance or use of the Services, as the case may be, or the exercise of its rights under Agreement. Each party agrees not to disclose the other party’s Confidential Information to any person or entity except as provided on Section 13.3and to its employees and consultants who have a need to know the Confidential Information; provided, that such employees and consultants are advised that the Confidential Information so disclosed is the Confidential Information of the other party and such employees and consultants are bound by confidentiality restrictions in a writing at least as protective as those set forth in this Agreement.
13.3 Disclosure of Confidential Information. Notwithstanding anything to the contrary contained in this Section 13, each party may disclose any of the Confidential Information of the other party if, and only to the extent, required to do so by law, governmental regulation or court order; provided, that the party making such disclosure shall give prompt notice thereof to the other party in as far in advance as practicable prior to such disclosure and shall cooperate with the other party, at such other party’s expense, to obtain a protective order regarding such disclosure.
Section 14. Software and Devices Proprietary Notices.
Client shall not remove, modify or obscure any copyright, trademark or any other proprietary rights notice that appears on any software or devices provided by us to Client. Client shall not reverse engineer, decompile or disassemble any software or devices provided by us to Client
Section 15. Administration
15.1. Solicitation of Our Employees. Client shall not solicit or hire any Magoo & Associates employee to become an employee of or consultant to, Client for the Term and for a period of 3 years following the expiration or the termination of this Agreement for any reason.
15.2. Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, licenses, copyrights and all other intellectual property of such other party, and that we shall own all right, title and interest in and to all ideas, concepts and inventions and all intellectual property rights related thereto that we may develop in the course of performing the Services. Client does not acquire any ownership interest or rights to possess any of our servers or other hardware, and has not right of physical access to the hardware. Upon termination of this Agreement, Client in connection with the Service agrees that we may take action to change or remove any such internet provider addresses.
15.3. Amendment. Except as otherwise expressly provided herein, no amendment of this Agreement shall be binding upon either party hereto unless such amendment is set forth in a writing and executed by both parties hereto. Any waiver of any breach of any provision of this Agreement shall only be effective if in writing and executed by both parties hereto and only to the extent specifically set forth is such writing.
15.4. No Assignment. Client shall not assign this Agreement or any part hereof without our prior written consent, which consent shall not be unreasonably withheld or delayed. Client shall not sublicense any of its rights under this Agreement, nor shall Client delegate or subcontract to any person or entity any of the performance of Client’s duties hereunder.
15.5. Counterpart. This Agreement may be executed in counterpart, and each such counterpart hereof shall be deemed to be an original instrument, and all such counterparts together shall constitute but one agreement.
15.6. Notice. All notices and other communications under this Agreement shall be in writing and shall be delivered personally, by nationally recognized overnight courier or by electronic mail to the appropriate party at its address set forth in the Sales Order Form, or at such other address as such party may provide in writing to the other party hereto in accordance herewith from time to time. Any such other notice so delivered shall be effective when personally delivered or sent by electronic mail with a copy thereof retained by the sender, or one (1) day after deposit with such courier with delivery charges prepaid.
15.7. Entire Agreement. This Agreement (consisting of the Sales Order Form entered into between Client and us; the AUP; the General Terms and Conditions; and all Schedules attached to the Sales Order Form or this Agreement, which may include, but not be limited to any related Service Level Agreements or any other agreements required by federal regulation, constitutes the entire understanding between the parties hereto with respect to the subject matter hereof. The parties hereto agree that this Agreement supersedes and replaces any and all other agreements, whether oral or in writing, regarding the subject matter hereof.
15.8. No Third Party Beneficiary. This Agreement shall be binding upon and inure to the benefits of the parties hereto and our successors and assigns. No other person or entity is an intended third party beneficiary of, or shall be deemed to be a third party beneficiary of, any of the terms and conditions of this Agreement.
15.9. Validity. In case any one or more of the provisions contained in this Agreement should be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby and the parties hereto agree to negotiate in good faith to replace such invalid, illegal or unenforceable provision with a replacement provision to carry out the intent of such provision on the fullest extent lawful.
15.10. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Illinois without regard for the conflict of laws principles. The parties irrevocably and unconditionally submit to the jurisdiction of the federal and state courts located within the State of Illinois for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement.
15.11. Force Majeure. We shall not be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond our control, including significant failure of a part of the power grid, significant failure of the internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity or other events of a similar magnitude or type.
15.12. Remedies. Money damages would not be in a sufficient remedy for a breach of certain of Client’s obligations under this Agreement. In addition to any other remedies that might otherwise be available to us at law or in equity, we may seek and obtain specific performance and injunctive relief against the commission or continuation of any such breach or any anticipatory breach of this Agreement by Client, without bond.
15.13. Survival. The following Sections of this Agreement shall survive any termination or the expiration of this Agreement: Sections 1, 3, 8, 9. 10, 11, 12, 13, 14, and 15.
15.14. Independent Contractor. Client shall at all times act as and be considered an independent contractor hereunder. Nothing herein contained shall create any employment, agency, partnership, distributorship, joint venture or any other business relationship between Client and us, other than that of an independent contractor user of the Services. Client shall have no authority to obligate or bind us with respect to any matter, or make any contract, sale, agreement, warranty or representation, express or implied on our behalf.
15.15. Limitation on Actions. No legal action, regardless of its form, whether in contract or tory, including negligence, related to or arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action first accrued.
15.16. Attorneys’ Fees. In disputes concerning this Agreement, we shall be entitled to the costs of collection, enforcement, and injunctive relief, including but not limited to reasonable attorney’s fees and court costs, post-judgement collection expenses, and all necessary expenses, regardless of whether litigation is commenced.
15.17. Terms Generally. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any part thereof. the definitions in this Agreement shall apply equally to both the singular and plural forms of the terms defined. whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neutral forms. the words “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references here in to Sections and Exhibits to, this Agreement unless the context shall otherwise require. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice may be deferred until, or may be taken or given on the next Business Day. Unless otherwise specifically indicated, the word “or” shall be deemed to be inclusive and not exclusive.
15.18. Terms and Conditions. To the extent that any of the terms and conditions of this Agreement shall conflict with the Magoo & Associates “Product Terms & Conditions,” the terms and conditions of this Agreement shall control such conflicting terms and conditions.
AGREEMENT TO TERMS
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons w ho choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if any to the extent local laws are applicable.
The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the site.
INTELLECTUAL PROPERTY RIGHTS
Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
You may be required to register with the Site. You agree to keep your passcode confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
We make every effort to display as accurately as possible the colors, features, specifications, and details of the products available on the Site. However, we do not guarantee that the colors, features, specifications, and details of the products will be accurate, complete, reliable, current, or free of other errors, and your electronic display may not accurately reflect the actual colors and details of the products. All products are subject to availability, and we cannot guarantee that items will be in stock. We reserve the right to discontinue any products at any time for any reason. Prices for all products are subject to change.
PURCHASE AND PAYMENT
We accept the following forms of payment:
- American Express
- EFT Funds Transfer
- Purchase Order/ Check
You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transaction and contact you as needed. Sales tax will be added to the price of purchase as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.
You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. If your order is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel the applicable order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.
We reserve the right to refuse any order placed through the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per organization, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgement, appear to be placed by dealers, resellers, or distributors.
EQUIPMENT FINANCING/ LEASING
All financing and leasing options are considered final and are unconditional under the terms of your signed agreement. Terms of your agreement are stipulated within the finance or lease agreement and is provided by one or more of our financial partners. You acknowledge that under the terms of the finance agreement and quote, there may be monthly services incorporated within your finance/ lease obligation that are directly tied to services rendered by Magoo & Associates. Any breach of those terms could irrevocably cease your services and subsequent access to any and all information stored or associated within those services.
Quotations or proposals providing finance or lease options are subject to credit approval, and rates may vary prior to final final finance/ lease agreement. The proposal provides an approximate monthly payment for hardware, software and services based upon the contract type and terms in months. Taxes, fees and insurance are not included. Any changes in the amount financed will change this information. By signing your proposal/ quotation with a selected leasing option, you confirm that YOU have the rights an authorization to enter into financial obligations or contracts on behalf of your organization. Your approval of the quotation/ proposal with a leasing option selected may be shared with our financial partners and serve as your finance/ lease application. You further agree that Magoo & Associates may disclose additional account information to facilitate the approval or denial of your finance/ lease application. Upon request, Magoo & Associates will provide a written statement of what information and to whom the information was disclosed to.
All sales are final and no refunds will be issued, except under limited terms as provided below.
- Damaged or defective items upon delivery. Visibly damaged items delivered by third party delivery companies should be refused on carrier delivery. Customers should contact Magoo to initiate a RMA authorization if items are found to be DOA (Dead on Arrival) within three days of the delivery date. Customers are encouraged to contact the manufacturer if items are found defective after this window.
- Incompatible or incorrect items. Items that have been quoted, specifications checked, or recommended by a Magoo technician and are incompatible are eligible for exchange or refund. Although rare, incompatible devices due to numerous manufacturer sku’s may occur. In this case, the item is not considered accepted, even though payment may have been made or quote approved, until the device performs as specified.
- Misleading marketing information. Magoo utilizes many third party content providers to educate consumers on features or capabilities. If content appears to be misleading, customers may be eligible for refund. Customers are encouraged to contact a sales associate to confirm specific features required by the selected equipment.
You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Site, you agree not to:
- Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
- Systematically retrieve data or other content from this Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
- Use a buying agent or purchasing agent to make purchases on this Site.
- Use the Site to advertise or offer to sell goods and services, unless explicitly granted in writing as a partner program.
- Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
- Engage in unauthorized framing of or linking to the Site.
- Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
- Make improper use of our support services or submit false reports of abuse or misconduct.
- Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
- Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
- Attempt to impersonate another user or person or use the username of another user.
- Sell or otherwise transfer your profile.
- Use any information obtained from the Site in order to harass, abuse, or harm another person.
- Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise unless expressly provided in conjunction with an approved partner program.
- Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of this Site.
- Attempt to bypass any measure of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
- Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
- Delete the copyright or other proprietary rights notice from any Content.
- Upload or transmit (or attempt to upload or transmit) viruses, Trojan Horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
- Upload or transmit (or attempt to upload or transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “PCMS”).
- Except as may be the result of standard search engine or internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
- Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
- Use the Site in a manner inconsistent with any applicable laws or regulations.
USER GENERATED CONTRIBUTIONS
The Site may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”). Contributions may be reviewable by other users of the Site and the Marketplace Offerings and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warranty that”
- The creation, distribution, transmission, public display, or performance and the accessing, downloading, or copying or copying of your Contributions do not and will not infringe the propriety rights, including but not limited to the copying, patent, trademark, trade secret, or moral rights of any third party.
- Your Contributions are not false, inaccurate, or misleading.
- Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
- Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
- Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
- Your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
- Your Contributions do not violate any applicable law, regulation, or rule.
- Your Contributions do not violate the privacy or public rights of any third party.
- Your Contributions do not contain any materials that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
- Your Contributions do not violate any federal or state law concerning child pornography, or otherwise intended to exploit the well-being of minors;
- Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
By posting your Contributions to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, re-title, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sub-license of the forgoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now knows or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in you Contributions.
We do not assert any ownership over your Contribution. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representation in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contribution.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
GUIDELINES FOR REVIEW
We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our options or the views of any of our affiliates or partners. We do not assume liability for any reviews or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site or the Marketplace Offerings (“Submissions”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgement or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
THIRD PARTY WEBSITES AND CONTENT
We respect the intellectual property rights of others. If you believe that any materials available on or through the Site infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Pleased be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Site infringes your copyright, you should consider first contacting an attorney.
TERM AND TERMINATION
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have not obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Marketplace Offerings without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or the Marketplace Offerings.
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules, and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need no provide a statement of reason unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Effingham County, Illinois. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgement on the award entered by the arbitrator.
In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceedings; (b) there is no right for authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiation and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of the provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Marketplace Offerings, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGES, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTIONS OR CESSATION OF TRANSMISSION TO OR FROM THE SITE (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THOUGH THE SITE, ANY HYPERLINKING WEBSITES, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCTS OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGEMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THIS SITE, EVEN IF WE HAVE BEEN ADVISED OT THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of such data, and you hereby waive any right of action against us arising from such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and the other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assurance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800)952-5210 or (916)445-1254.
In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at
Magoo & Associates, LLC
1901 South 4th Street, Suite 30
PO BOX 116
Effingham, IL. 62401
Acceptable Use Policy
Welcome to Magoo & Associates, LLC (“Magoo”). This Acceptable Use Policy (“AUP) governs your use of magoo.tech and is incorporated by reference into any MSP Application and General Service Agreement you previously entered into with Magoo & Associates, LLC (the Agreement”). for Magoo products and services (the “Services”).
1. Acceptance of the Acceptable Use Policy
If you do not agree, do not use the Site. In using the Site, you represent and warranty that you are at least 18 years of age or otherwise have any and all permissions necessary to enter into or be bound by these terms. You Services may be suspended or terminated for violation of this AUP in accordance with your Agreement with Magoo.
Magoo Content. The Site contains material, which may include software, text, graphics, images, email, bulletin board postings, chat, tweets, and any other type of postings or transmission that relies on the internet (collectively, the “Content”). We may own the Content or portions of the Content may be made available through arrangements with third-parties. The Content is protected by the U.S. and foreign intellectual property laws. You have no rights in or to the Content, and you will not use, copy, or display the Content except as permitted under this Agreement or with our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make. You may not sell, transfer, assign, license, sublicense, or modify Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any Content on any other website or network computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Site shall automatically terminate and you shall immediately destroy and copies you have made of the Content.
Trademarks. The Site contains material, which may include software, test, graphics, images, email, bulletin board postings, chat, tweets, and any other type of posting or transmission that relies on the internet (collectively, the “Content”). We may own the Content or portions of the Content may be made available through agreements with third-parties. The Content is protected by U.S. and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy, or display the Content except as permitted under this Agreement or with our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Site shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
4. Prohibited Conduct and Uses
You agree to use the Magoo Site and Services only for their intended purposes. You may only use the Site and Services in compliance with all privacy, data protection, intellectual property, and other applicable laws. You may not use Magoo’s Site or Services to engage in, foster, or promote illegal, abusive, irresponsible, or otherwise prohibited conduct. Magoo reserves the right to determine, in its sole discretion, whether any conduct or use violates this AUP.
Prohibited conduct and uses includes, but are not limited to:
- aggregating, copying, or duplicating any Content on the Site or Services;
- removing, disabling, damaging, circumventing, or otherwise interfering with the security and proper working of the Site or Services;
- unauthorized access to or use of data, systems, or networks, including those owned or operated by Magoo, and including any attempt to probe, scan, or test the vulnerability of a system or network, whether by passive or intrusive techniques, or to breach security or authentication measures without express written consent of the owner of the system or network;
- monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
- interference with services of the Magoo or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system, and broadcast attacks;
- attempting to or submitting a virus to the Site or Services;
- using an internet account or computer without the owner’s authorization’
- store any protected information, including but not limited to PII, HIPAA, PCI, DSS regulated content, in any location within this website;
- collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including , without limitation, phishing, internet scamming, password robbery, spidering, crawling, data mining, automated access attempts, and harvesting);
- collecting or using information without the consent of the owner of the information;
- using any false, misleading, or deceptive TCP-IP packet header information in an email or newsgroup posting;
- using the Site or Service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
- distributing advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “add/remove” tool);
- attempting to decipher, decompile, disassemble, or reverse engineer any of the software on or making up the Site;
- any conduct that is likely to result in retaliation against the Magoo network or Site, or Magoo’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS);
- accessing the Site or Services from a jurisdiction where it is illegal, unauthorized, or penalized; and
- using or exporting any Content published or transmitted via the Site or Services in violation of the U.S. export laws and regulations.
5. Offensive Content
You may not publish, transmit, or store on or via Magoo’s network and equipment any content or links to any content that Magoo reasonably believes:
- constitutes, depicts, fosters, promotes, or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
- constitutes, depicts, fosters, promotes, or relates in any manner to child pornography, bestiality, or non-consensual sex acts is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- is defamatory or violates a person’s privacy;
- creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement;
- improperly exposes trade secrets or other confidential or proprietary information of another person;
- is intended to assist others in defeating copyright protections;
- infringes on another person’s copyright, trade or service mark, patent, or other intellectual property right;
- promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
- is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Magoo;
- or is intended to harass or threaten; or
- is otherwise malicious, fraudulent, or may result in retaliation against Magoo by offended viewers or recipients.
6. International Use
Magoo is headquartered in the United States of America. Magoo makes no representation that Content or services available through the Magoo Site or Services are appropriate or available for use in other locations, and access to them from territories where the content or use of such services is illegal is prohibited. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. If you use the Site or Services outside the United States, you expressly agree to the transfer and processing of any information we collect wherever we may have operations.
7. Links to Third Party Websites
The Site may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and do not represent an endorsement by Magoo of the content, advertising, products, and services on such External Sites. The content, advertising, products, and services of External Sites are developed and provided by others. You should contact the site administrator for those External Sites if you have any concerns regarding links or any content located on such External Sites.
Magoo us not responsible for the content of any materials on such External Sites. You should take precautions when downloading files from any website to protect your computer from viruses and other destructive programs. If you decide to access any External Site, you do so at your own risk.
8. Service Termination
Magoo reserves the right, in its sole discretion, to restrict, suspend, or terminate the services of customers who Magoo reasonably consider to have violated this AUP. Magoo reserves the right to change, suspend, or discontinue all or any part of this Site or tho Content at any time without prior notice.
9. Service Disruption
No credit will be available under a Magoo service level guaranty or agreement for interruptions of service resulting from AUP violations.
10. Limitations of Liability
(a) MAGOO, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “COMPANY PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE COMPANY PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SITE AND THE CONTENT AT YOUR OWN RISK.
THE COMPANY PARTIES DO NOT WARRANT THAT THE SITE WILL OPERATE ERROR FREE OR THAT THE SITE, ITS SERVER, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO COMPANY PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
THE SITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
(b) IN NO EVENT SHALL ANY COMPANY PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE COMPANY PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless the Company Parties from and against any claims, actions, or demands, including without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Acceptable Use Policy or your access to, use, or misuse of the Site or Services and any related Content. Magoo shall provide notice to you of any such claim, suit, or proceeding. Magoo reserves the right to assume the exclusive defense and control of any matter subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests to assist Magoo’s defense of such matter.
12. General Terms
This AUP and your Agreement constitute the entire agreement between you and Magoo concerning your use of the Site and Services. Magoo’s failure to exercise or enforce any right or provision of this AUP or your Agreement shall not constitute a waiver of such right or provision. If any provision of this AUP or your Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this AUP or your Agreement, which shall remain in full force and effect. Section headings in this AUP are provided merely for convenience and shall not be given any legal import. This AUP will inure to the benefit of Magoo’s successors, assigns, licensees, and sublicensees.
13. Choice of Law
This AUP is governed by the Laws of the State of Illinois, without respect to its conflict of laws provision. By browsing or visiting this Site, you expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts within the City of Effingham in the State of Illinois.
CLOUD HOSTING TERMS OF SERVICE
These Terms of Service, together with any applicable Service Descriptions (as defined in Section 1.1) and Orders (as defined in Section 1.2 below) and other attachment attached hereto or otherwise made a part of these Terms of Service (collectively, the “Agreement”) is entered between Magoo & Associates, LLC (“Magoo”) and the party entering into an Order with Magoo & Associates, LLC (“Customer”) as may be identified in this Agreement (each a “Party” and collectively as the “Parties”) as of the Customer’s service activation date (“Effective Date”). The purpose of this Agreement is to provide a framework governing Customer’s purchase of services from Magoo pursuant to one or more Orders (the “Services”). Magoo rejects any terms and conditions contained in Customer’s forms that are additional to or different from those set forth in Magoo’s Order, Services Descriptions, or in these Terms of Service. Magoo and Customer agree as follows:
1. AGREEMENT, ORDERS AND SERVICES
1.1. Agreement; Service Descriptions. This Agreement contains general contractual terms for all Services to be provided by Magoo pursuant to one or more orders (each, an “Order”). Additional terms and conditions that apply to each type of Service may be set forth in service descriptions, which will be published on Magoo’s website or otherwise made available by Magoo to Customer (each a “Service Description”), and/or in the applicable Order. Magoo may from time to time make changes to the Service Descriptions to add new or improved Services, substitute Services for improved performance or simply discontinue a Service (collectively “Updates”). Customer shall periodically check the Magoo website for such Updates.
1.2. Ordering Procedures. Customer may at any time request for Magoo to provide a Service by submitting to Magoo an Order, either online, by phone, by online chat, or in a signed quote/ proposal form provided by Magoo. Each Order is incorporated into the Agreement and will contain applicable pricing and payment terms, Service Level Agreement (as defined in Section 1.3), if any, and other transaction-specific provisions. In the event of any conflict between this Agreement and the terms of any of the Service Descriptions and the applicable Order(s), precedence will be given in the following order: (a) the Order, but solely with respect to the Services covered by that Order; (b) the Service Description, but solely with respect to the Service covered by the Services Description; and (c) this Agreement.
1.3. Support and Service Levels. Magoo will provide technical support services for the Services (“Support”) to its Customers via phone, email and live chat based on the level of Support purchase by Customer pursuant to an Order. Detailed descriptions of the various Support levels are set forth in the quote/ proposal. Managed Service Customers should reference their Master Service Agreement and terms set within their quote/ proposal. Support is only available to Customer; Magoo has no obligation to provide Support to any other party. In addition, Magoo will make the Services available in accordance with the applicable service levels set forth at https://magoo.tech/kb/user-notices-41/ (the “Service Level Agreements”). Magoo may from time to time make changes to the Support or Service Level Agreements, and Customer shall periodically check the Magoo website for such changes.
1.4. Third Party Products. Magoo may make available to Customer from time to time, certain third party products, including hardware and software (collectively, the “Third Party Products”) and, if purchased by Customer, such Third Party Products are non-refundable upon termination of the Agreement. Customer acknowledges and agrees that Magoo is reselling such Third Party Products and that it neither provides any warranty related to nor assumes any liability for such Third Party Products. To the extent permitted by the Third Party Product manufacturer, Magoo will pass through to Customer the manufacturer’s warranties related to each Third Party Product and will use commercially reasonable efforts to facilitate utilization by Customer of such warranties. Customer shall abide by all terms and conditions governing the use of such Third Party Products.
1.5. Ownership. Customer shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any materials made available by Magoo. Customer shall not use any Services or materials provided by Magoo after the expiration or termination of the Order under which the same was provided.
1.6. Subcontractors. Magoo may use affiliates and third party service providers to perform all or any part of the Services, but Magoo remains responsible under the Order for Services performed by any affiliate or third party service provider to the same extent as if Magoo performed the Services.
2. CHARGES AND PAYMENT TERMS
2.1. Fees. Customer shall pay to Magoo all recurring and non-recurring fees for the Services and Third Party Products (“Fees”) in the amounts set forth on the applicable invoice. Magoo may increases fees for the Services provided under an Order upon thirty (30) days’ advance notice as follows: (a) for Services provided on a month-to-month term, Magoo may increase Fees effective the first day of the next month following the notice period; and (b) for Services provided over a term greater than one month, Magoo may increase fees for the Services provided under an Order as of the first day of the next Renewal Term.
2.2. Bandwidth Fees. Bandwidth usage for bundled bandwidth packages related to Internet data transfers will be calculated based upon outgoing bandwidth transfer only. If Customer’s actual data transfer usage exceeds the amount of Customer’s bandwidth package, Customer will be charged a bandwidth overage Fee as specified in the applicable Order. When using the Magoo provided Content Delivery Network (“CDN”), Customer is responsible for all bandwidth costs associated with the delivery of content over the public Internet, including any content delivery caused by unauthorized use of Customer’s CDN connection. Magoo will not enable “hot-linking” capability by default. In the event “hot-linking” capability is activated at Customer’s request, Customer remains responsible for all network usage.
2.3. Payment Terms. Unless other payment methods have been approved, Magoo will charge Customer’s credit card monthly, without invoice. If another method of payment has been approved, Magoo shall forward via electronic mail a copy of the current invoice to Customer no later than two (2) days after the invoice date to the email address(es) designated on page one (1) of this Agreement (“Billing Email Address”). Customer must provide Magoo thirty (30) days written notice of any changes to its Billing Email Address. All charges shall be due and payable by Customer to Magoo within thirty (30) days of the invoice date. Customer waives the right to dispute any charges not disputed within such thirty (30) day period. Billing shall commence on the first day the Services are made available to Customer. Monthly recurring charges shall be invoiced monthly. Non-recurring charges will be invoiced seperately for the applicable installation or Service changes as directed by Customer.
2.4. Late Payments. Magoo may suspend all Services provided to Customer if Customer fails to pay any Fees when due. In addition, if any undisputed amount is not paid when due, Magoo may impose a late charge in an amount equal to one and one-half percent (1 ½%) (or the maximum legal rate, if less) of the unpaid balance per month. In the event a payment is received by Magoo and is returned for insufficient funds or bank charges, Customer shall reimburse Magoo for all associated processing charges as well the late charge to the extent applicable. In the event that non-disputed payments are received late or returned by insufficient funds more than three (3X) times annually, Magoo may require that Customer establish a deposit and or pay with guaranteed funds. Customer will reimburse Magoo for all expenses Magoo incurs, including reasonable attorney fees, in collecting any amounts past due under this Agreement.
2.5. Credit Approval and Deposit. Customer acknowledges that delivery of the Services is subject to the continuing approval by Magoo of Customer’s creditworthiness. Customer shall furnish financial information as Magoo may from time to time reasonably request to determine Customer’s creditworthiness.
2.6. Taxes and Assessments. Customer is responsible for the payment of all governmental assessments, surcharges, and fees pertaining to its use of the Services (other than taxes on Magoo Web’s net income). Magoo shall not invoice Customer for taxes if Customer provides Magoo with, and maintains, valid and properly executed certificate(s) of exemption for the taxes. Such certificates of exemption must be reasonably acceptable to Magoo. Customer is responsible for all taxes up until the time a valid certificate of exemption is provided to Magoo. If Customer fails to maintain the required tax exemption certificate(s), Magoo shall back-bill Customer for all applicable taxes.
2.7. Shipping. All shipments of Third Party Products by Magoo to Customer are EXW point of shipment. Any insurance coverage, transportation costs and all other expenses applicable to shipment from Magoo to Customer’s identified point of delivery will be the responsibility of the Customer. Customer grants Magoo a security interest in and to the Third Party Products as security for payment in full of the purchase price. Customer authorizes Magoo to file and/or record any documents it deems necessary to perfect this security interest.
2.8 Refunds. Except as otherwise provided herein or in the applicable Service Level Agreement, Customer shall not be entitled to any refund for any Services purchased hereunder. Setup Fees are not refundable.
3. RESPONSIBILITIES OF CUSTOMER
3.1. Equipment, Hardware and Software.
3.1.1. Customer is responsible for the installation, operation, and maintenance of hardware or software not provided by Magoo, including ensuring the same is up to date. Magoo is not responsible for the transmission or reception of information by such hardware or software.
3.1.2. Customer is responsible for the selection, use and compatibility of hardware or software not provided by Magoo. If hardware or software not provided by Magoo impairs Customer’s use of the Services, Customer is nonetheless liable for payment for Services. If Magoo notifies Customer that the hardware or software not provided by Magoo is causing or is likely to cause hazard, interference, or service obstruction, Customer must eliminate the hazard, interference, or service obstruction. Magoo may suspend the provision of Service until the hazard, interference, or service obstruction is corrected. If requested by Customer, Magoo may, at its then-current rates, assist Customer with resolving technical difficulties caused by hardware or software not provided by Magoo. If any changes in Service cause hardware or software not provided by Magoo to become obsolete, require modification or alteration, or otherwise affect performance of such hardware or software, Customer, not Magoo, is responsible for modifying, altering or replacing the hardware or software.
3.1.3. If Customer provides its own equipment to interface with the Services, Customer is responsible for the installation, maintenance, and configuration of the equipment.
3.1.4. For the sole purpose of enabling Customer to use Services, Magoo grants to Customer a non-exclusive and non-transferable license to use software that may be provided with or included in the Services. Magoo or its suppliers retain title and property rights to Magoo-provided software and equipment, whether or not it is embedded in or attached to Customer’s hardware. Customer neither owns nor will it acquire any claim or right of ownership to (a) any Magoo-provided equipment not purchased by Customer; (b) any software (including the original media and all subsequent copies of the software, regardless of the media’s form, including product keys provided by third parties whereby the keys are for Customer’s exclusive use and continued use of such keys beyond termination of any Service order or this Agreement is prohibited) and associated documentation (including copies); and (c) any IP addresses assigned to Customer.
3.1.5. Magoo is responsible for maintaining its software and hardware in accordance with the terms of this Agreement. Customer agrees not to open, alter, misuse, tamper with or remove the software and equipment required to operate the Service. Customer will not remove any markings or labels or serial numbers from the equipment. If the equipment is damaged, destroyed, lost or stolen while in Customer’s possession, Customer shall be liable for the cost of repair or replacement of such equipment. Customer will safeguard the equipment from loss or damage of any kind, and will not permit anyone other than an authorized representative of Magoo to perform any work on the equipment. Prior to installation of the hardware, Customer shall notify Magoo of any special requirements regarding the placement of the hardware at Customer’s premises to accommodate all Customer’s employees, agents and contractors with a physical disability who are tasked with monitoring such hardware in order to perform their job functions. Any request, post installation, to relocate the hardware will result in additional non-recurring charges.
3.2. Compliance. Customer shall obtain all applicable licenses, permits and approvals for the use of the Services or Third Party Products required by any governmental agency, foreign or domestic, having jurisdiction over the transaction. Customer and its users shall use the Services in compliance with all applicable state, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.
3.3. Acceptable Use. Customer is responsible for all acts and omissions of its users in connection with receipt or use of the Services, and Customer and its users shall at all times abide by Magoo’s Acceptable Use Policy, available at https://magoo.tech/kb/acceptable-use-policy-aup_168.html. Customer will not use the Services or Third Party for life support, life sustaining, nuclear or other applications in which failure of such Services or Third Party Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Customer agrees that Magoo is not liable, in whole or in part, for any claim or damage arising from use of Services or Third Party Products in such applications.
4. DATA PROTECTION AND SECURITY
4.1. Customer Data. Customer is solely responsible for the security and content of all Customer data stored in Magoo’s hosted environment and any data, applications or third party services run in or through the Magoo provided environment (”Customer Data”), and Customer Data is and at all times shall remain Customer’s exclusive property.
4.2. Legal Requirements. Customer is solely responsible for determining if any Customer Data must comply with any law, standards, and policies, including without limitation, those related to data privacy and security (collectively referred to herein as the “Legal Requirements”) and ensuring that the Customer Data does comply with all applicable Legal Requirements. Customer acknowledges and agrees that Magoo has no way of reviewing Customer Data.
4.3. Security. Customer shall encrypt at the application level all Sensitive Customer Data. “Sensitive Customer Data” means Customer Data that is required to be treated as confidential under state or federal law or under Customer’s contractual obligations to others Information. Customer shall promptly notify Magoo upon becoming aware of any data breach or unauthorized access to Magoo’s network or servers and accounts. Customer will take all commercially reasonable steps to cooperate with Magoo’s investigation and resolution of the reported breach or unauthorized access. Notwithstanding the foregoing, Customer acknowledges and agrees that Magoo makes no representation or warranty regarding the security of its Services.
4.4. Access and Use. Magoo is not responsible to Customer for unauthorized access to Customer Data or unauthorized use of the Services through authorized or unauthorized access provided by Customer to third parties. Customer is responsible for the use of the Services by any of Customer’s employees, affiliates, officers, directors, shareholders, agents or representatives, or any other third party given access to the Service, and any third party who gains access to Customer Data or Services as a result of Customer’s failure to use reasonable security precautions, even if such access was not authorized by Customer.
4.5. Backups. Customer shall be responsible maintaining all backups for all Customer Data on Magoo’s servers. In the event Magoo provides backup assistance on its servers, it is provided, without additional charge, as a courtesy (“Courtesy Support”) to Customer. Magoo has no liability for any lost or corrupted Customer Data resulting from the provision of Courtesy Support.
4.6. HIPAA and HITECH Act. Customer shall immediately notify Magoo if any of the data in the applicable Service environment includes Protected Health Information (“PHI”), as that term is defined Title II, Subtitle F of the Health Insurance Portability and Accountability Act of 1996, as amended. If the data does include PHI, Customer and Magoo shall enter into a Business Associate Agreement (“BAA”).
4.7. Payment Card Industry – Data Security Standards (“PCI-DSS). If, as necessary to perform its obligations under the Agreement, Magoo possesses or otherwise stores “cardholder data” (as that term is defined by the Payment Card Industry Data Security Council https://www.pcisecuritystandards.org) on behalf of Customer, Magoo and Customer agree that each Party is responsible, as may be designated in the applicable Service Description, for those certain PCI-DSS requirements as applicable. Customers are highly encouraged to store and process PCI-DSS data on the gateway providers server.
4.8. EU General Data Protection Regulation. Customer shall notify Magoo if it intends to use Magoo Services with Customer Data that is subject to protection under General Data Protection Regulation 2016/679 (“GDPR”). Such notification shall require the Parties execute a Data Protection Addendum (“DPA”) under which Magoo will be a Processor and Customer the Controller as those terms are defined under the GDPR. Customer may not utilize any Services with Customer Data that is subject to GDPR protection until such time as the Parties have executed a DPA.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1. Mutual Representations and Warranties. Each Party represents, warrants and covenants that, as of the Effective Date and continuing throughout the term of this Agreement:
5.1.1. It is an organization duly formed, validly existing and in good standing under the laws of the state in which it is formed, and in good standing in each other’s jurisdiction where the failure to perform in good standing would have a material adverse effect on its business or its ability to perform its obligations hereunder.
5.1.2. It has all necessary organizational power and authority to enter into this Agreement and each Order and to perform its obligations hereunder, and the execution of this Agreement and each Order and consummation of the transactions contemplated thereby have been duly authorized by all necessary organizational actions on its part.
5.1.3. This Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms.
5.1.4. It shall comply with all laws in connection with the Services and otherwise under this Agreement.
5.2. Magoo Representations, Warranties and Covenants. Magoo represents, warrants and covenants that:
5.2.1. It will perform the Services in a diligent, professional and workmanlike fashion using an appropriate number of properly trained and qualified individuals.
5.2.2. It will provision the Services to operate within the technical standards of performance or service levels, if any, set forth in the applicable Service Description, Service Level Agreement, or Order. Customer’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable Service Description, Service Level Agreement, or Order.
5.3. Disclaimer of Warranties. Customer assumes total responsibility for use of the Services, Third Party Products, and any applicable equipment. Magoo has no responsibility for the security, loss, intrusion or unauthorized access of stored data or any loss or damage caused by any action, omission or failure to comply with the terms of this Agreement by Customer. ALL PRODUCTS AND SERVICES PROVIDED OR OTHERWISE MADE AVAILABLE BY MAGOO ARE PROVIDED ON AN “AS-IS” BASIS, AND MAGOO MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY SERVICE, THIRD PARTY PRODUCT, OR EQUIPMENT PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY MAGOO ARE HEREBY EXCLUDED AND DISCLAIMED.
6. CONFIDENTIAL INFORMATION
6.1. Definitions. As to any particular Confidential Information, the “Discloser” is the Party disclosing the Confidential Information and the “Recipient” is the Party receiving the Confidential Information. “Confidential Information” means any information (whether tangible or intangible, printed, electronic, or otherwise) and items embodying information (including graphs, photographs, samples, working models, and prototypes) at any time furnished by Discloser to Recipient or to which Recipient is exposed during the term of this Agreement, including, without limitation, (a) information concerning Discloser’s business and business plans, (b) financial information concerning Discloser and its affiliates, (c) information concerning Discloser’s pending patents or other trade secrets, (d) Discloser’s sketches, drawings, designs and specifications, (e) Discloser’s concepts, ideas, inventions, know-how, processes, apparatus, equipment, algorithms and formulas, and (f) information from third parties that Discloser is obligated to treat as confidential. Customer Proprietary Network Information (“CPNI”), as defined by United States Code 47 U.S.C. § 222(h) (1), shall be considered to be the Confidential Information of Customer. Customer’s data stored at Magoo’s data center(s) or stored on or processed on Magoo’s systems shall be considered to be Confidential Information. All other Confidential Information provided in written or electronic form must be clearly marked “Confidential.” In the case of Confidential Information provided orally, a written memorandum of such information clearly marked “Confidential” must be delivered to Recipient within thirty (30) days of the disclosure.
6.2. Restrictions on Use; Non-Disclosure. Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers and consultants who have a need to know to further the purpose of this Agreement and are subject to legally binding obligations of confidentiality and non-use no less restrictive than those contained in this Agreement. During the term of this Agreement, Customer will designate an account representative who has the authority to request Customer’s CPNI under this Agreement through its dedicated Magoo account representative.
6.3. Exceptions. The obligations set forth in this Section 6 above shall not apply to Confidential Information that (a) before the time of its disclosure was already in the lawful possession of the Recipient; (b) at the time of its disclosure to Recipient is available to the general public or after disclosure to Recipient by Discloser becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement. In the event Customer and Magoo enter into a separate Non-Disclosure Agreement (“NDA”), then such NDA shall be incorporated into this Agreement by reference herein, and if any terms and conditions of such NDA are in conflict with the terms and conditions herein, then the NDA shall supersede the Confidentiality terms and conditions in this Section 6, excluding Magoo’s CPNI obligations as defined herein.
6.4. Ownership; No License. Each Party shall retain ownership of all rights, including all intellectual property rights, in its Confidential Information. Nothing in this Agreement shall be deemed, by implication or otherwise, to convey to Recipient any right under any patent, patent application, invention, or other proprietary right owned by Discloser or anyone associated with Discloser.
6.5. Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing (if legally permitted) so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
6.6. Duration. The obligations set forth in this Section 6 shall survive termination of this Agreement for a period of three (3) years.
6.7. Disposal of Confidential Information. Recipient agrees to return to Discloser all copies of Confidential Information promptly upon Discloser’s request at any time. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed.
6.8. Remedies. The Parties acknowledge and agree that a breach of this Section 6 by either Party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Discloser shall therefore be entitled, in the event of any actual or threatened violation of this Section by Recipient, and in addition to any other remedies available to it, to a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief.
7.1. Indemnification by Magoo. Magoo shall indemnify, defend, and hold harmless Customer and its officers, directors, agents and employees from and against any and all demands, causes of action, losses, damages, fines, penalties, and claims, and all related costs and expenses (including reasonable attorneys’ fees) (collectively referred to as “Losses”) arising any third party claim that Customer’s use of the Services not in violation of this Agreement infringes or misappropriates any valid, U.S. patent, copyright, or trade secret of such third party. In addition to Magoo’s indemnification obligations set forth in this Section 7.1, in the event of a claim or threatened claim under this 7.1 by a third party, Magoo may, at its sole option, (1) revise the Services up to and including termination of this Agreement upon ten (10) days’ notice so that they are no longer infringing, (2) obtain the right for Company to continue using the Services, or (3), in the event neither of the foregoing are reasonable, terminate this Agreement and refund to Customer a pro-rata amount of any pre-paid Services not yet receives as of the date of termination. THIS SECTION 7.1 REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF MAGOO AND THE EXCLUSIVE REMEDY OF CUSTOMER RELATED TO ANY INFRINGEMENT OR MISAPPROPRIATION CLAIMS OF A THIRD PARTY.
7.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Magoo and its officers, directors, agents and employees, from and against any and all Losses arising out of or in any manner relating to: (a) violation of any law by Customer; (b) any claim for withholding or other taxes that might arise or be imposed due to this Agreement or the performance hereof; (c) damage to property or personal injury (including death) arising out of the gross negligence or willful acts or omissions of Customer; or (d) claims by a third party arising out of or related to the use or misuse of any Service or Third Party Products.
7.3. Indemnification Procedure. The Party seeking indemnification under this section shall promptly, and in writing, notify the other Party of any claim as to which it intends to seek indemnification under this Agreement, and shall take such action as may be necessary to avoid default or other adverse consequences. The indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the indemnifying Party.
8. LIMITATIONS OF LIABILITY
8.1. Limit on Types of Damages Recoverable. The Party seeking indemnification under this section shall promptly, and in writing, notify the other Party of any claim as to which it intends to seek indemnification under this Agreement, and shall take such action as may be necessary to avoid default or other adverse consequences. The indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the indemnifying Party.NEITHER PARTY NOR ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, CONTRACTORS, OR SUPPLIERS, SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MAGOO BE LIABLE FOR ANY DAMAGES RELATED TO ANY THIRD PARTY PRODUCT.
8.2. Limit on the Amount of Damage Recoverable. Except as may be provided in an applicable Service Level Agreement, Magoo’s liability to Customer and its respective officers, directors, employees, agents, contractors, successor and assigns arising under or related to this Agreement and the Services provided hereunder shall be limited in all cases to direct damages which shall not exceed the amount of Fees paid by Customer under the applicable Order for the Services during the six (6) month period immediately preceding the event giving rise to the claim for damages.
8.3. No Liability for Certain Actions. Magoo shall not be liable to Customer for any claims or damages resulting from or caused by (a) unauthorized access to transmission facilities or premises equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method where such unauthorized access is due to Customer’s fault, negligence or failure to perform Customer’s responsibilities; (b) Customer’s fault, negligence or failure to perform Customer’s responsibilities; (c) claims against Customer by any other party; (d) any act or omission of any other party; or (e) equipment or services furnished by a third party. Magoo is not responsible for Customer Data or the content of any other information transmitted or received through the Services.
8.4. Limitation of Actions. Neither Party may bring any action, regardless of form, arising out of or relating to an Order or this Agreement more than three (3) months from the date on which the cause of action arose.
9.1. Agreement. This Agreement shall commence on the Effective Date and continue until the last Order expires or is terminated, unless this Agreement is sooner terminated in accordance with the terms of Section 10 (Termination) below.
9.2. Service Term. An individual Services term shall commence on the Effective Date and continue for the period of time specified on its Order (the “Initial Term”), unless sooner terminated in accordance with the terms of Section 10 (Termination) below. Thereafter, the Agreement will automatically renew for successive one-year periods, or, if no such term is specified, the Agreement shall continue in effect on a month-to-month basis at the then current month-to-month rates (the “Renewal Term”) unless either Party provides the other Party with written notice of its intention not to renew at least thirty (30) days before expiration of the Initial Term. The Initial Term and Renewal Term are sometimes individually and collectively referred to as the “Service Term.”
10.1. Termination for Cause. Either Party shall have the right to terminate this Agreement and/or any Order upon written notice to the other party:
10.1.1. If the other Party defaults in the performance of any of its material obligations under this Agreement and such default continues for a period of thirty (30) days after receipt of written notice specifying the nature of the breach. In the case of nonpayment of fees, the cure period shall be ten (10) days.
10.1.2. If the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization (individually or collectively “Bankruptcy Proceedings”). For the avoidance of doubt, such Bankruptcy Proceedings shall not be subject to a cure period as described in Section 10.1.1.
10.1.3. If Customer defaults in the performance of any of its material obligations under this Agreement and fails to cure such default within the cure period specified above, Magoo may at its sole option do any or all of the following: (a) cease accepting or processing Orders and/or suspend Services; (b) cease all electronically and manually-generated information and reports; (c) draw on any letter of credit, security deposit or other assurance of payment and enforce any security interest provided by Customer; (d) terminate this Agreement and/or the applicable Order; or (e) pursue such other legal or equitable remedy or relief as may be available to Magoo. A nonpayment or other default by Customer resulting in the termination of the Agreement and/or applicable Order, shall entitle Magoo to collect from Customer the applicable early termination charges as described under Section 10.4, in addition to pursuing any other available remedy.
10.2. Termination for Convenience. Customer shall have the right to terminate any Order at any time for convenience by providing thirty (30) days’ written notice to Magoo and paying Magoo the early termination charges specified in Section 10.4 below. Termination shall be effective and the affected Services will be discontinued within thirty (30) days after Magoo receives the completed termination notice.
10.3. Change in Regulatory Requirements. If the Federal Communications Commission, a state Public Utilities or Service Commission or a court of competent jurisdiction, issues a rule, regulation, law or order which has the effect of canceling, changing or superseding any material term or provision of this Agreement (collectively, “Regulatory Requirement”), then this Agreement shall be deemed modified in such a way as the Parties mutually agree is consistent with the form, intent or purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the Parties be unable to agree on modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then upon written notice, either Party may, to the extent practicable, terminate that portion of this Agreement impacted by the Regulatory Requirement, or if the entire Agreement is impacted, either Party may terminate the Agreement with no further obligation or liability hereunder, and Customer shall not be liable for an early termination charge hereunder.
10.4. Early Termination Charge. If the Services are cancelled or terminated prior to the expiration of the Service Term for any reason other than: (a) by Customer in accordance with the terms of the Order or Section 10.1, then Customer shall pay Magoo an early termination charge equal to:
10.4.1. for flat rated Services: one hundred percent (100%) of the monthly recurring charges for the Services multiplied by the number of months remaining in the Service Term;
10.4.2. for prepaid Services: one hundred percent (100%) of the prepaid amount;
10.4.3. any non-recurring fees Magoo incurs from other suppliers in connection with cancellation of the Services; and
10.4.4 any outstanding invoices still owed by Customer.
Such payments shall be due within sixty (60) days of termination.
10.5. Suspension. In addition to the rights and remedies set forth in this Agreement, Magoo may suspend some or all of the Services without liability to Customer if: (a) Customer fails to pay the applicable fees for the Services when due; (b) Magoo determines that the Services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of this Agreement; (c) Customer fails to cooperate with an investigation of any suspected breach of this Agreement; (d) Magoo reasonably believes that the Services have been accessed or utilized in any way by a third party without Customer’s consent; or (d) suspension of services is reasonably necessary to protect Magoo’s hosting environment. Magoo will use commercially reasonable efforts to provide Customer advance notice of a suspension and a chance to cure the violation on which the suspension is based, unless Magoo determines, in its reasonable judgment, that an immediate suspension is necessary to protect Magoo’s network and its customers’ from an imminent, significant operational, network integrity or security risk. Suspensions based on Customer’s breach of this Agreement will not relieve Customer’s obligation to pay for the suspended Services during the period of suspension. Any suspension imposed under this Section will be lifted upon Customer’s cure of the breach causing the suspension. In the event the Customer is unable to cure the breach within fifteen (15) days of notice from Magoo, the suspension may be treated as a termination for Cause. During the suspension period, Magoo shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. Magoo may at its own discretion allow access to a suspended account.
11. GENERAL PROVISIONS
11.1. Publicity. Except as otherwise provided herein, neither Party will use the other Party’s name, logo or service marks, for any purpose, including press releases, without the other Party’s prior written consent. Notwithstanding the foregoing, Customer may use Magoo’s name and logo to positively publicize that it uses Magoo’s Services, and Magoo may include Customer’s name in its customer list, website, partner portal, and publications.
11.2. Assignment and Binding Nature. Customer shall not assign, voluntarily or by operation of law, any of its rights or obligations under this Agreement without the prior written consent of Magoo. Magoo may upon prior written notice to Customer, assign all of its rights and obligations under this Agreement to any entity which effects a merger transaction with Magoo or otherwise acquires all or substantially all of the capital stock or assets of Magoo. Subject to the foregoing, this Agreement shall be binding on the Parties and respective successors and assigns.
11.3. Notices. Except as otherwise provided herein, any notice or other communication between the Parties hereto regarding the matters contemplated by this Agreement may be sent by U.S. mail (first-class, airmail or express mail), commercial courier, facsimile or electronic mail. Any written notice required to be sent under Section 10 (Termination) must be sent by U.S. mail (first-class, airmail or express) or commercial courier. Notices to Magoo shall be sent to: Magoo & Associates, LLC, PO BOX 116 Effingham, IL. 62401, Attn: General Counsel, and notices to Customer shall be sent to the contact information set forth in Customer’s Order, or at such other addresses as either Party may designate in writing.
11.4. Amendments. Magoo may update, modify, add, or delete this Agreement at any time and such update shall be reflected on Magoo’s website. Customer’s continued use of the Services following any change to the Agreement constitutes acceptance of the Agreement.
11.5. No Third-Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create, third-party beneficiaries of or under this Agreement. CUSTOMER AGREES THAT MAGOO HAS NO OBLIGATION TO ANY THIRD PARTY BY VIRTUE OF THIS AGREEMENT.
11.6. Relationship of Parties. Nothing contained in this Agreement shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the Parties. Neither Party has the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other Party or to bind such other Party in any way. Each Party shall be responsible for the actions of, and its obligations to, its own personnel, contractors, and subcontractors including obligations relating to the following, as applicable: payments, wages, taxes, withholding, insurance (including, without limitation, workman’s compensation), and hours and conditions of employment.
11.7. Force Majeure. Neither Party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such Party’s reasonable control, including, but not limited to: acts of God, fire, flood, storm, explosion, terrorism, vandalism, or other similar catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties (“Force Majeure Event”). In the event Magoo is unable to deliver any Service as a result of a Force Majeure Event, Customer shall not be obligated to pay Magoo for the affected Service for so long as Magoo is unable to deliver that Service.
11.8. Legal Expenses. If any action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing Party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
11.9. Waiver. The failure by any Party to this Agreement to insist upon strict performance of any provision of this Agreement will not constitute a waiver of that provision. All waivers must be in writing to be enforceable hereunder.
11.10 Interpretation. The descriptive headings of this Agreement and of any Service Description or Exhibit under this Agreement are for convenience only and shall not affect the construction or interpretation of this Agreement. As used herein, “include” and its derivatives (“including”, “e.g.”) shall be deemed to mean “including, but not limited to.” Each Party acknowledges that this Agreement has been the subject of active and complete negotiations, and that this Agreement should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisers participated in the preparation of this Agreement.
11.11. Servability. If any provision of this Agreement shall be declared invalid, illegal or unenforceable under applicable law, said provision shall be ineffective only to the extent of such declaration and such declaration shall not affect the remaining provisions of this Agreement. In the event that a material and fundamental provision of this Agreement is declared illegal, invalid or unenforceable under applicable law, the Parties shall negotiate in good faith respecting an amendment hereto that would preserve, to the fullest extent possible, the respective rights and obligations imposed on each Party under this Agreement as originally executed.
11.12. Executable by Electronic Means. This Agreement may be executed in two or more counterparts (including by means of faxed or emailed signature pages), each of which will be deemed an original, and all of which together will constitute one and the same instrument. Photocopies, facsimile transmissions and other reproductions of this executed original (with reproduced signatures) will be deemed original counterparts of this Agreement. The Parties consent and agree the Agreement and any Order may be entered into electronically by way of electronic signatures (for example, by electronically clicking a box confirming agreement or utilizing third party software such as DocuSign), and any such electronic signatures shall be binding and treated as original signatures. In the event Magoo requires a correction or clarification to an executed Order prior to the Service’s first day of availability, an email communication from Customer may be utilized as an acceptable method of approval for any such correction or clarification and shall be incorporated as part of the Order.
11.13. Governing Law; Jurisdiction. This Agreement shall be governed by and interpreted according to the laws of the State of Michigan (without regard to its conflict of law principles), and the Parties hereby consent to the exclusive jurisdiction of the state or federal courts in the State of Michigan to adjudicate any dispute arising under or in connection with this Agreement. Any such dispute shall be brought before the courts with jurisdiction over Ingham County, Michigan. The Parties hereby waive any objection based on inconvenient forum.
11.14. Tariffs. Subject to the terms set forth in this Agreement, Magoo hereby incorporates by reference those provisions of its tariffs that govern the provision of any of the services or facilities provided hereunder. If any provision of this Agreement and an applicable tariff cannot be reasonably construed or interpreted to avoid conflict, the provision contained in this Agreement shall prevail.
11.15. Export Matters. Customer represents and warrants that Customer is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons to whom Magoo is legally prohibited to provide the Services. Customer may not use any Service for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may Customer provide administrative access to any Service to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.
11.16. Entire Agreement. This Agreement, together with all Service Descriptions and Orders, embodies the entire agreement and understanding between Magoo and Customer with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
11.17. Survivability. Each Party’s obligations under Section 5 (Representations, Warranties and Covenants), Section 7 (Indemnification), and Section 8 (Limitation of Liability) and shall survive the expiration or termination of this Agreement.
For Product(s) shipped outside of the United States, in addition to the current Terms and Conditions of Sales and Services, the following Terms and Conditions of International Product Shipment will apply and will modify the Terms and Conditions of Sales and Services:
- All purchases from Customer with a “Ship To” address outside of the United States will be made pursuant to the following INCOTERMS 2010 term:
- “DAT (airport terminal, airport in country of importation), seller responsible for delivery to buyer’s door at buyer’s risk, after buyer has satisfied all customs formalities in country of importation.” This includes, but not limited to International or VAT Taxes.
- Title to the Products will transfer from Seller to Customer when the Products reach the designated terminal at the designated airport in the country of importation.
- Risk of loss of or damage to the Products will also transfer from Seller to Customer when the Products reach the designated terminal at the designated airport in the country of importation.
- Seller will use commercially reasonable efforts to arrange for the delivery of the Products to Customer’s location. However, Customer will bear all risk of loss of or damage to the Products from the point when the Products reach the designated terminal at the designated airport in the country of importation until the point when the Products reach Customer’s location.
- All shipping charges will be paid by Customer and will include insurance for the Product while in transit.
- Customer must obtain, at its own risk and expense, any import license or other official authorization required by the country of importation.
- Customer must pay any duty, excise tax or other comparable fees and carry out all customs formalities for the import of the Products, in the country of importation.
- The Terms and Conditions of Sales and Services and the Terms and Conditions of International Product Shipment will govern Product(s) shipped outside the United States regardless of any other agreement between Customer and Seller.
Third Party Cloud Services
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
BY RECEIVING THE CLOUD SERVICE DIRECTLY FROM THE THIRD PARTY SERVICE PROVIDER (“CLOUD SERVICE PROVIDER”) OR BY MAKING PAYMENT TO THE MAGOO & ASSOCIATES, LLC AFFILIATE IDENTIFED ON THE SERVICE ORDER FORM (“SELLER”), CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND SELLER HAVE SIGNED A SEPARATE AGREEMENT WHICH EXPRESSLY GOVERNS THE RECEIPT OF CLOUD SERVICES, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ANY GENERAL DESCRIPTION OF THE CLOUD SERVICE AND/OR THE RESULTS THEREOF POSTED ON ANY SELLER WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN SELLER AND CUSTOMER.
Important Information About These Terms and Conditions
Customer consents to receiving electronic records, which may be provided via a web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic upon written request to Seller. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Customer may issue a Purchase Order for administrative purposes only. Additional or different terms and conditions contained in any such Purchase Order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any Purchase Order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of the Cloud Services except for Seller’s customer services order form (each, a “Service Order Form”).
“Confidential Information” means, subject to the following sentence, any information or data of a confidential nature of a Party, its Affiliates or a third party in oral, electronic or written form that the receiving Party knows or has reason to know is proprietary or confidential and that is disclosed by a Party in connection with these Terms and Conditions or that the receiving Party may have access to in connection with these Terms and Conditions, including but not limited to the terms and conditions of each Statement of Work and/or Purchase Order. Confidential Information does not include Personal Data.
“Control” or “Controlled” means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs of another whether by ownership of shares, ability to appoint officers, contract or otherwise.
“Force Majeure Event” means any event or circumstance arising which is beyond the reasonable control of Seller (including but not limited to any industrial dispute affecting any third party, carrier delays, embargos, acts of God or acts or laws of governmental regulations or government agencies, severe weather conditions, fire, flood, disaster, failure of power, civil riot, war or terrorism).
“Laws” means any applicable federal, state, provincial, local, municipal, regional, foreign, international, multinational or other constitution, law, statute, treaty, rule, regulation, regulatory or legislative requirement, ordinance, license, restriction, judicial or administrative order, code, common law or other pronouncement having the effect of law.
“Personal Data” means data which relates to a living individual who can be identified (a) from that data, or (b) from that data and other information which is in the possession of, or is likely to come into the possession of, the controller, and includes any expression of opinion about the individual and any indication of the intentions of the controller or any other person in respect of the individual.
“Purchase Order” or “PO” means a document that is in electronic form and that contains an offer by Customer to purchase pursuant to these Terms and Conditions at a specified price as the same may be amended or modified from time to time and incorporates these Terms and Conditions.
Seller makes no warranties to Customer and Customer hereby acknowledges that Seller makes no warranties in regard to the applicability of all Laws affecting, without limitation the manufacture, performance, sale, packaging and labelling of the Cloud Services which are in force within Customer’s territory or any part of it (Local Regulations). Customer must satisfy itself that the Cloud Services comply with the Local Regulations in force from time to time.
Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Cloud Services. SELLER, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE CLOUD SERVICES.
Seller shall not be liable for any loss or damage suffered or incurred by Customer arising from Seller’s delay or failure to fulfil or otherwise discharge any of its obligations under these Terms and Conditions or any Customer Service Order Form or PO where such delay or failure is caused by any non-performance of its obligations by Customer, industrial dispute, sudden or substantial depletion of Seller’s staff, or any Force Majeure Event.
Pricing Information; Availability Disclaimer
Limitation of Liability
ALL EXCLUSIONS AND LIMITATIONS IN THESE TERMS AND CONDITIONS AND/OR ANY PURCHASE ORDER SHALL ONLY APPLY SO FAR AS PERMITTED BY LAW.
What information do we collect from the people that visit our website?
When ordering or registering on our site, as appropriate, you may be asked to enter your name, email address, mailing address, phone number, shipping address or other details to help you with your experience.
When do we collect information?
We collect information from you when you register on our site, place an order, subscribe to a newsletter or enter information on our site.
How do we use your information?
We may use the information we collect from you when you register, make a purchase, sign up for our newsletter, respond to a survey or marketing communication, surf the website, or use certain other site features in the following ways:
- To personalize user’s experience and to allow us to deliver the type of content and product offerings in which you are most interested.
- To quickly process your transactions.
- To send periodic emails regarding your order or other products and services.
How do we protect visitor information?
- Our website is scanned on a regular basis for security holes and known vulnerabilities in order to make your visit to our site as safe as possible.
- Your personal information is contained behind secured networks and is only accessible by a limited number of persons who have special access rights to such systems, and are required to keep information confidential. In addition, all sensitive/ credit information you supply is encrypted via Secure Socket Layer (SSL) technology and stored on secure servers.
- We implement a variety of security measures when a user places and order enters, submits, or accesses their information to maintain safety of your personal information.
- All transactions are processed through a gateway provider and are not stored or processed on our servers.
Do we use ‘cookies’?
Compile aggregate data about site traffic and site interactions in order to offer better site experiences and tools in the future. We may also use trusted third party services that track this information on our behalf.
You may choose to have your computer warn each time a cookie is being sent, or you can choose to turn off all cookies. You do this through your browser (like Internet Explorer) settings. Each browser is a little different, so look at your browser’s Help menu to learn the correct way to modify your cookies.
If you disable cookies, some features will be disabled and may affect your experience and render some functions inoperable.
Third Party Disclosure
We do not sell, trade, or otherwise transfer to outside parties your personal identifiable information. Some information may be passed to third parties to complete you order or services.
Third Party Links
Occasionally, at our discretion, we may include or offer third party products or services on our website. These third party sites have separate and independent privacy policies. We therefore have no responsibility or liability for the content and activities of these linked sites. Nonetheless, we seek to protect the integrity of our site and welcome any feedback about these sites.
Google’s advertising requirements can be summed up by the Google Advertising Principles. They are put in place to provide a positive experience for users. https://support.google.com/adwordspolicy/answer/1316548?hl=en
Demographic and Interest Reporting
We along with third-party vendors, such as Google, use first-party cookies (such as Google Analytics cookies) and third party cookies (such as the Double-Click cookie) or other third-party identifiers together to compile data regarding users interactions with ad impressions, and other ad service functions as they relate to our website.
California Online Privacy Protection Act
According to CalOPPA we agree to the following:
- Users can visit our site anonymously.
- Users are able to change their personal information by logging in to their account.
How does our site handle do not track signals?
We honor do not track signals and do not track, plant cookies, or use advertising when a Do Not Track (DNT) browser mechanism is in place.
Does our site allow third party behavioral tracking?
It’s also important to note that we allow third party behavioral tracking. Usage is limited to advertising and customer convenience functions.
COPPA (Children Online Privacy Protection Act)
When it comes to the collection of personal information from children under 13, the Children’s Online Privacy Protection Act (COPPA) puts parents in control. The Federal Trade Commission, the nation’s consumer protection agency, enforces the COPPA Rule, which spells out what operators of websites and online services must do to protect children’s privacy and safety online.
We do not specifically market to children under 13.
Fair Information Practices
The Fair Information Practices Principles form the backbone of privacy law in the United States and the concepts they include have played a significant role in the development of data protection laws around the globe. Understanding the Fair Information Practice Principles and how they should be implemented is critical to comply with the various privacy laws that protect personal information.
In order to be inline with Fair Information Practices we will take the following responsive action, should a data breach occur:
- We will notify the user via in site notification within 1 business day
- We also agree to the individual redress principle, which requires that individuals have a right to pursue legally enforceable rights against data collectors and processors who fail to adhere to the law. This principle requires not only that individuals have enforceable rights against data users, but also that individuals have recourse to courts or government agency to investigate and/ or prosecute non-compliance by data processors.
CAN SPAM ACT
The CAN-SPAM Act is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have emails stopped from being sent to them, and spells out tough penalties for violations.
We collect your email address in order to:
Process orders and to send information and updates pertaining to orders.
We may also send you additional information related to your product and/or service.
To be in accordance with CANSPAM we agree to the following:
- NOT use false, or misleading subjects or email addresses.
- Identify the message as an advertisement in some reasonable way.
- Include the mailing address of our business or site headquarters.
- Monitor third party email marketing services for compliance, if one is used.
- Honor opt-out/ unsubscribe requests quickly.
- Allow users to unsubscribe by using the link at the bottom of each email.
If at any time you would like to unsubscribe from receiving future emails, you can reply to the email with unsubscribe. You may also follow the instructions at the bottom of each email, and we will promptly remove you from ALL marketing correspondence.
If there is any questions regarding this privacy statement you may contact us using the information provided below.
Magoo & Associates, LLC | PO BOX 116 Effingham, IL. 62401 | 217-318-3084 | Contact Us
Next Generation Voice and HIPAA compliance
What is HIPAA?
HIPAA is the acronym for the Health Insurance Portability and Accountability Act, a U.S. law passed in 1996 to create national standards for electronic health care transactions, among other purposes. The provisions of HIPAA apply to all “individually identifiable health information,” also known as protected health information (PHI). HIPAA Privacy and Security Rules set the U.S. national standard for protecting PHI, including patients’ medical records and other health information provided to health care providers in electronic health care transactions.
To whom does HIPAA apply?
- Covered Entities
- HIPAA applies to three groups: health plans, health care clearinghouses and certain health care providers (collectively referred to as the “covered entities”). Another group referred to as “business associates” falls within the scope of HIPAA.
- Business Associates
- HIPAA defines a “business associate” as a person or entity that provides services to or performs certain functions or activities that involve the use or disclosure of protected health information on behalf of a covered entity. In the omnibus final rule written by the U.S. Department of Health and Human Services (HHS) that modified the HIPAA Privacy, Security, Breach Notification and Enforcement Rules, the HHS stated “data transmission organizations that do not require access to protected health information on a routine basis would not be treated as business associates.” (78 federal register, page 5571 – 01/25/2013). This is consistent with its prior interpretation of the definition of “business associate,” in which HHS stated that “entities that act as mere conduits for the transport of protected health information but do not access the information other than on a random or infrequent basis are not business associates.” (78 federal register, page 5571).
What s a business associate agreement?
Each entity covered by HIPAA is required to have a signed agreement (also called “Business Associate Agreement”) with any person or entity considered a “business associate.” The Business Associate Agreement lists the obligations and responsibilities of both organizations pertaining to the protection and use of the protected health information.
HIPAA covered entities may be issued a non-disclosure for business purposes, but should not be considered under HIPAA regulations as a “Business Associate Agreement”. In cases where Magoo & Associates maintains or accesses protected information, a “Business Associate Agreement” may be issues. Generally under the context of VOIP or related services, this is not required.
What is the impact in the context of Cloud Hosted VOIP?
Anyone providing health care services that electronically transmit PHI, any health plans and health care clearing house, as well as any service provider to any of these entities which services involve the use or disclosure of PHI should follow the HIPAA rules when using cloud services, making use of electronic PHI and other regulated data for business processes to protect sensitive data that transit in the cloud. Before undertaking a cloud-based solution, be sure to consult a legal advisor to understand the HIPAA rules applicable to your business, potential enforcement and liabilities.
Is Magoo & Associates a business associate under HIPAA in the context of Cloud Hosted VOIP?
No, Magoo & Associates is not a business associate within the definition of HIPAA in respect to VOIP, or Next Generation Voice Services..
In the context of Cloud PBX Services, Magoo & Associates does not create, receive, maintain, access, process, nor view PHI on behalf of its customers. The data transmission conducted in the course of the services does not require access to protected health information on a routine basis. Therefore, Magoo & Associates is not a business associate in the context of the VOIP, Next Generation Voice Services and customers do not need to sign a Business Associate Agreement with Magoo & Associates in the context of the Cloud PBX Services.
How can you ensure HIPAA compliance with your VOIP phone system/ PBX?
Magoo & Associates values customer security and data privacy. The Magoo & Associates Cloud VOIP/ PBX platform is hosted in North American data centers and meets the highest security standards. We deploy the best equipment that protects our network from security breaches and our service is covered by a 99.999% SLA.
As part of its business, Magoo & Associates does not store any PHI and restricts access to voicemails, voice accounts and administrative management to authorized users. It is the customer’s responsibility to keep its credentials secured. Cloud PBX customers are responsible for ensuring that the following functionalities have been disabled to maintain their HIPAA compliance:
- Fax-to-email & email-to-fax (ATA Fax falls under entity privacy policies)
- Voicemail transcription
- Call recording
- Unified Communication Connector with Microsoft Skype for Business or Microsoft Teams
A covered entity could technically be in violation to HIPAA if any caller left PHI in a voicemail that was transmitted to an email.
Again, it is always the customer’s responsibility to ensure full compliance with applicable regulations. Make sure to consult your legal advisor if you have any concerns or questions regarding your compliance with HIPPA.
The above compliance guide is strictly for Cloud VOIP, PBX, and Next Generation Voice Services. Customers are encouraged to speak with their sales engineer regarding instances of on-premis PBX or similar configurations to ensure compliance on a routine bases.